Jones, Mabel S. v. Prince George Cty

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United States Court of Appeals

FOR THE DISTRICT OF COLUMBIA CIRCUIT

Argued September 19, 2003 Decided November 14, 2003

No. 02-7104

MABEL S. JONES, INDIVIDUALLY, AS THE NEXT BEST FRIEND OF,

AND PERSONAL REPRESENTATIVE OF THE ESTATE OF

PRINCE CARMEN JONES JR.,

APPELLEE

v.

PRINCE GEORGE’S COUNTY, MARYLAND, ET AL.,

APPELLEES

PRINCE CARMEN JONES SR., INDIVIDUALLY AND AS CO–LEGAL

CUSTODIAN OF NINA AMAYYE EDEN CHI JONES, A MINOR, AND

CANDACE JACKSON, MOTHER AND NEXT FRIEND,

INDIVIDUALLY AND AS CO–LEGAL CUSTODIAN

OF NINA AMAYYE EDEN CHI JONES, A MINOR,

APPELLANTS

Appeal from the United States District Court

for the District of Columbia

(No. 00cv02902)

–————

Bills of costs must be filed within 14 days after entry of judgment.

The court looks with disfavor upon motions to file bills of costs out

of time.

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Terrell N. Roberts III argued the cause for appellants.

With him on the brief was Patrick Malone.

Gregory L. Lattimer argued the cause for appellee Mabel

S. Jones. With him on the brief was Ted Williams.

Before: HENDERSON, TATEL, and GARLAND, Circuit Judges.

Opinion for the Court filed by Circuit Judge TATEL.

TATEL, Circuit Judge: In this case, we must decide whether

the minor child of the victim of a fatal police shooting may

intervene in a wrongful death action brought by the personal

representative of the victim’s estate. Although we disagree

with the district court that the minor child must have an

independent state-law cause of action in order to participate

in this litigation, we agree with the court that the minor may

not intervene as a matter of right because the personal

representative adequately represents her interests. Accord-

ingly, we affirm the district court’s denial of the motion to

intervene.

I.

Late on an August night in 2000, two Prince George’s

County, Maryland police officers began searching for a man

suspected of stealing a police pistol. Operating undercover,

the officers drove separate unmarked cars and wore jeans

and T-shirts to blend in with the drug underworld in which

they worked. Their search led them into the District of

Columbia and to a man behind the wheel of a black Jeep

Cherokee. The officers followed the Jeep as it was driven

from the District into Maryland, back through D.C., and

ultimately into Virginia. Their pursuit ended with one of the

officers firing sixteen shots from his semiautomatic weapon at

the Jeep, killing its driver. The slain man was not the

alleged gun thief evading police detection. He was Prince

Carmen Jones Jr., a 25-year-old Howard University student

on his way to Fairfax County, Virginia to visit his fianc´e.

e

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Jones’s death spawned two separate lawsuits against the

Prince George’s County police department, one in the United

States District Court for the District of Columbia—the case

at issue here—and another in Maryland state court. In the

former, Mabel Jones, Jones’s mother and the personal repre-

sentative of his estate (Mrs. Jones), filed suit individually and

on behalf of Jones’s estate against Prince George’s County,

the chief of the Prince George’s County police department,

and the two officers. Her complaint alleged claims under

Virginia’s wrongful death law, Maryland’s survival statute,

and 42 U.S.C. § 1983, among others. In the Maryland

litigation, Candace Jackson, Jones’s fianc´e and the mother of

e

his infant daughter, Nina, along with Prince Carmen Jones

Sr., Jones’s father (Jones Sr.), sued the same Prince George’s

County defendants alleging wrongful death, failure to train

and supervise, and violations of the Maryland Constitution.

As these two suits got underway, each of the plaintiffs

sought to intercede in the other action. Contending that only

she, the personal representative of Jones’s estate, was enti-

tled to sue, Mrs. Jones moved to intervene in, and then

dismiss, the Maryland suit. Finding that Jackson and Jones

Sr. lacked standing to bring claims on Nina’s behalf, the

Maryland court dismissed their case. An appeal of that

decision is now pending.

Additionally, Jackson, on behalf of Nina, and Jones Sr., for

himself and on Nina’s behalf, moved to intervene in Mrs.

Jones’s action in order to participate in the adjudication of

Mrs. Jones’s Virginia wrongful death claim. Both the magis-

trate judge and the district court denied their motion. Citing

this court’s precedent requiring prospective intervenors to

have Article III standing, the district court concluded that

because neither guardian was a proper plaintiff under Virgi-

nia’s wrongful death statute, each lacked standing and there-

fore could not intervene in the pending litigation. See Jones

v. Prince George’s County, No. 00–2902, slip op. at 10–11

(D.D.C. Aug. 12, 2002) (citing City of Cleveland, Ohio v.

Nuclear Regulatory Comm’n, 17 F.3d 1515, 1517 (D.C. Cir.

1994) (per curiam)).

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Acting on Nina’s behalf, Jackson and Jones Sr. now appeal.

Because a district court’s denial of a motion to intervene as of

right disposes of the movant’s interest, it is a final order that

we may review immediately. See, e.g., Fund for Animals,

Inc. v. Norton, 322 F.3d 728, 732 (D.C. Cir. 2003).

II.

Although the district court denied Nina’s guardians’ at-

tempt to intervene under both Federal Rule of Civil Proce-

dure 24(a) (intervention of right) and Rule 24(b) (permissive

intervention), the only issue that Jackson and Jones Sr. raise

in this appeal is Nina’s motion to intervene as of right. Rule

24(a) provides:

Upon timely application anyone shall be permitted to

intervene in an action TTT 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 par-

ties.

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

In addition to satisfying the four elements of Rule 24—

timeliness, interest, impairment of interest, and adequacy of

representation—prospective intervenors in this circuit must

possess standing under Article III of the Constitution. See,

e.g., Fund for Animals, 322 F.3d at 731–32; City of Cleve-

land, 17 F.3d at 1517. The parties argue that Nina’s stand-

ing to intervene turns on whether she may bring a cause of

action, a question they agree depends on whether Virginia or

Maryland law applies to this case. Under both the Virginia

and Maryland wrongful death statutes, a decedent’s child may

recover damages to compensate her for the loss she suffers as

a consequence of her parent’s death. See Md. Code Ann.,

Cts. & Jud. Proc. § 3–904(a)(1) (Michie 2002); Va. Code Ann.

§ 8.01–53(A) (Michie 2000 & Supp. 2003). Despite this simi-

larity, Virginia and Maryland law differ on who can bring a

wrongful death action. Under Virginia law, only the dece-

5

dent’s personal representative may sue on behalf of the

statutorily designated wrongful death beneficiary—here,

Nina. See Va. Code Ann. § 8.01–50(B) (Michie 2000) (‘‘Every

[wrongful death claim] under this [statute] shall be brought

by and in the name of the personal representative of [the]

deceased personTTTT’’). In contrast, Maryland law authorizes

wrongful death beneficiaries to initiate suits on their own.

See Smith v. Borello, 804 A.2d 1151, 1154 (Md. 2002).

Mrs. Jones insists that Virginia law applies and that be-

cause Nina’s guardians may not bring a cause of action under

Virginia law, they may not intervene here. Conversely, Nina

argues that Maryland law applies and that she may therefore

intervene in Mrs. Jones’s suit. Staking their positions on this

choice-of-law analysis, the parties wage their legal battle on

the terrain of D.C. choice-of-law principles, the distinctions

between ‘‘procedural’’ and ‘‘substantive’’ law, and the meaning

of lex loci delicti, among other state-law issues.

We believe that the parties are looking at this question

through the wrong analytical lens. In a motion to intervene

under Rule 24(a)(2), the question is not whether the applica-

ble law assigns the prospective intervenor a cause of action.

Rather, the question is whether the individual may intervene

in an already pending cause of action. See Smuck v. Hobson,

408 F.2d 175, 179 (D.C. Cir. 1969) (en banc) (‘‘[I]n the context

of intervention the question is not whether a lawsuit should

be begun, but whether already initiated litigation should be

extended to include additional parties.’’). As the Rule’s plain

text indicates, intervenors of right need only an ‘‘interest’’ in

the litigation—not a ‘‘cause of action’’ or ‘‘permission to sue.’’

See Fed. R. Civ. P. 24(a)(2). In Trbovich v. United Mine

Workers of America, 404 U.S. 528 (1972), the Supreme Court

concluded that the lack of a cause of action does not, in and of

itself, bar a party from intervening. Id. at 537. There, the

Court permitted a union member to intervene in a Labor-

Management Reporting and Disclosure Act suit brought by

the Secretary of Labor to set aside a union election even

though that statute expressly prohibits union members from

initiating such actions on their own. Id. at 530-31. Accord-

ing to the Court, the statute’s ‘‘bare language,’’ which makes

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suit by the Secretary the ‘‘exclusive TTT remedy,’’ did not, by

itself, defeat the union member’s right to participate in the

pending case. Id. at 531-32 (citing 29 U.S.C. § 483); see also

Olden v. Hagerstown Cash Register, Inc., 619 F.2d 271, 274

(3d Cir. 1980) (per curiam) (assuming that the lack of a

private right of action did not bar an insurer from intervening

in a wrongful death action to protect its subrogation right).

Therefore, contrary to the district court’s reasoning and the

parties’ arguments here, the ‘‘bare language’’ of Virginia law

does not per se deprive Nina of standing to intervene.

This then brings us to the question of whether Nina

satisfies the standing requirements imposed by circuit prece-

dent. See, e.g., City of Cleveland, 17 F.3d at 1517. To be

sure, we have noted that requiring prospective intervenors to

establish Article III standing gives rise to several thorny

issues—the most relevant for our purposes being the tension

between requiring standing of prospective plaintiff-

intervenors while at the same time finding Article III satis-

fied when only one party has standing. See Roeder v. Islam-

ic Republic of Iran, 333 F.3d 228, 233 (D.C. Cir. 2003) (citing

Watt v. Energy Action Found., 454 U.S. 151, 160 (1981)). We

need not ‘‘dwell’’ on this issue, id., however, because whether

Virginia or Maryland law governs this dispute—a question we

do not decide—Nina has a concrete and cognizable interest in

this litigation that, under circuit precedent, satisfies Article

III’s demands. Id.; cf. S. Christian Leadership Conference v.

Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984) (stating that Article

III’s ‘‘gloss’’ on Rule 24 requires an intervenor to have a

‘‘legally protectable’’ interest). Nina clearly suffers from an

injury that the Prince George’s County defendants allegedly

caused and that the requested relief would redress: the

shooting deprived Nina of her father’s financial and emotional

support, the shooting indisputably caused her loss, and a

favorable decision would remedy this injury. Nina thus has

standing to participate in this suit.

We turn next to whether Nina satisfies the requirements

for intervention of right under Rule 24(a)(2): timeliness,

interest, impairment of interest, and adequacy of representa-

tion. We can easily dispose of the first two elements. Mrs.

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Jones concedes that Nina’s guardians timely filed their mo-

tion to intervene, and because Nina has suffered a cognizable

injury sufficient to establish Article III standing, she also has

the requisite interest under Rule 24(a)(2). See Fund for

Animals, 322 F.3d at 735; Mova Pharm. Corp. v. Shalala,

140 F.3d 1060, 1076 (D.C. Cir. 1998) (observing that satisfying

constitutional standing requirements demonstrates the exis-

tence of a legally protected interest for purposes of Rule

24(a)).

This leaves Rule 24(a)(2)’s third and fourth requirements.

Nina argues that the present litigation will impair her inter-

est by virtue of its potential res judicata effect on her

Maryland wrongful death claim. We need not address this

argument, however, for we agree with the district court that

Nina’s motion fails Rule 24(a)(2)’s fourth element—adequacy

of representation—and Nina must satisfy all four elements of

the Rule in order to intervene as of right. See Bldg. &

Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282

(D.C. Cir. 1994).

Both the magistrate judge and the district court found that

Nina’s guardians failed to demonstrate that Mrs. Jones inade-

quately represents her granddaughter’s interests. The mag-

istrate judge concluded that Mrs. Jones’s fiduciary duty to

Nina as the personal representative of Jones’s estate sufficed

to show adequacy. See Jones v. Prince George’s County, 202

F.R.D. 39, 42 (D.D.C. 2001). The district court likewise noted

that ‘‘the movants have failed to show that any interests they

may have are inadequately represented in this case.’’ Jones,

No. 00–2902, slip op. at 13. Nina’s guardians challenge this

conclusion on two grounds.

First, Nina’s guardians contend that Mrs. Jones’s interests

do not coincide with Nina’s. In their view, because the case

caption indicates that Mrs. Jones is suing ‘‘individually’’ and

in her representative capacity, she could pursue her own,

potentially conflicting agenda at Nina’s expense. At oral

argument, however, counsel for Mrs. Jones assured us that

Mrs. Jones has affirmatively disavowed any financial interest

in this litigation. Even more significantly, Mrs. Jones pur-

sues her state wrongful death action, the only claim in which

8

Nina seeks to participate, in her capacity as Nina’s trustee or

fiduciary. See Semler v. Psychiatric Inst. of Wash., D.C.,

Inc., 575 F.2d 922, 925 (D.C. Cir. 1978) (explaining that in a

Virginia wrongful death action, ‘‘‘the personal representative

of the deceased sues primarily as trustee for certain statutory

beneficiaries TTT’’’ (quoting Wilson v. Whittaker, 154 S.E.2d

124, 128 (Va. 1967))); Va. Code Ann. § 26–59(A) (Michie 2001)

(listing a decedent’s personal representative as a type of

fiduciary). Indeed, even if Mrs. Jones were motivated by her

own financial gain despite her promise to the contrary and

her obligations as personal representative, she would have no

way to pursue it at Nina’s expense, for under Virginia law

Mrs. Jones may not recover for her son’s wrongful death.

See Va. Code Ann. § 8.01–53(A) (providing that a decedent’s

parents are entitled to wrongful death damages only if the

decedent has no child). Because Mrs. Jones acts as Nina’s

surrogate in the pending wrongful death action, the interests

of Mrs. Jones as trustee and Nina as beneficiary are perfectly

congruent.

Second, Nina claims that Mrs. Jones has made a series of

strategic blunders that demonstrate her inadequate represen-

tation. Specifically, Nina asserts that Mrs. Jones filed suit in

an inappropriate forum, advanced a disadvantageous choice-

of-law position, and failed to bring a state-law claim that

would have enhanced the estate’s recovery. Nina’s guardians

also fault Mrs. Jones for refusing to cooperate with their

attorneys. Although an existing party who is ineffectual,

incompetent, or unwilling to raise claims or arguments that

would benefit the putative intervenor may qualify as an

inadequate representative in some cases, this is not such a

case. The alleged inadequacies here amount to little more

than quibbles over litigation tactics. ‘‘A mere difference of

opinion concerning the tactics with which litigation should be

handled does not make inadequate the representation of those

whose interests are identical with that of an existing party or

who are formally represented in the lawsuit.’’ 7C CHARLES

ALAN WRIGHT, ARTHUR R. MILLER & MARY KAY KANE, FEDERAL

PRACTICE AND PROCEDURE § 1909, at 344 (2d ed. 1986). Nina’s

guardians also argue that Mrs. Jones is an inadequate repre-

sentative because she failed to bring a wrongful death action

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under Maryland law, the claim they hope to pursue in the

Maryland court. At the same time, however, Nina’s guard-

ians contend that Mrs. Jones’s Virginia wrongful death action,

the only claim in which they seek to participate here, would

yield the same wrongful death damages as their Maryland

wrongful death claim. In other words, Nina’s guardians

effectively concede that Nina has no substantive right to a

wrongful death recovery that Mrs. Jones is failing to protect.

Therefore, their disagreement over Mrs. Jones’s choice of law

boils down to just another dispute over litigation tactics. ‘‘If

disagreement with an existing party over trial strategy quali-

fied as inadequate representation, the requirement of Rule 24

would have no meaning.’’ Butler, Fitzgerald & Potter v.

Sequa Corp., 250 F.3d 171, 181 (2d Cir. 2001); see also Mass.

Sch. of Law at Andover, Inc. v. United States, 118 F.3d 776,

781 (D.C. Cir. 1997) (‘‘[W]e do not think representation is

inadequate just because a would-be intervenor is unable to

free-ride as far as it might wish—a well-nigh universal com-

plaint.’’).

Finally, even if, as Nina’s guardians contend, Mrs. Jones’s

counsel has refused to cooperate or share information with

Nina’s lawyers—a point that Mrs. Jones disputes—this al-

leged deficiency says little about Mrs. Jones’s representative

adequacy for purposes of Rule 24(a)(2). Indeed, we cannot

imagine why an existing party would bear such an obligation

to a prospective intervenor. Not surprisingly, Nina’s counsel

has pointed to no case, nor have we found one, in which an

existing party was deemed inadequate on such grounds.

The district court’s denial of the motion to intervene is

affirmed.

So ordered.