United States Postal Service v. Brennan

OAKES, Circuit Judge

(dissenting):

I dissent. I believe that intervention should have been permitted as of right.

Rule 24(a) permits intervention of right when an applicant has complied with the Rule’s four elements. 1 To satisfy Rule 24(a) NALC must have established (a) timely application, (b) interest in the litigation, (c) threat of impairment to its interest in the litigation and (d) inadequate representation of that interest by the existing parties.

There is no question that NALC acted expeditiously in seeking intervenor status. Timeliness is a function of two factors — (a) length of time that the applicant knew of his interest but failed to intervene and (b) prejudice to existing parties from failure to move promptly to intervene. See Equal Employment Opportunity Commission v. United Air Lines, Inc., 515 F.2d 946, 949 (7th Cir. 1975). NALC sought to intervene within three weeks after the Brennans answered the Postal Service’s complaint. And the Brennans did not claim prejudice on timeliness grounds. Clearly, NALC’s application was timely.

NALC also has an undeniable interest in the litigation; that is, a “significantly pro-tectable interest.” Donaldson v. United States, 400 U.S. 517, 531 , 91 S.Ct. 534 , 27 L.Ed.2d 580 (1971). Enforcement of the Private Express Statutes, and consequently of the congressionally established governmental monopoly on the conveyance of letter mail, enhances the protection of a substantial economic interest of NALC’s members. The loss of revenue to the Postal Service through the diversion of business to the Brennans’ delivery service and the potential proliferation of such private services might well threaten the continued financial strength of the Postal Service and ultimately the job and financial security of NALC’s members. See New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, 516 F.2d 350, 352 (2d Cir. 1975) (per curiam) (recognizing economic interest as protectable for purpose of intervention of right). Moreover, in National Association of Letter Carriers v. Independent Postal System of America, Inc., 470 F.2d 265, 269-70 (10th Cir. 1972), the Tenth Circuit Court of Appeals found that the economic injury in fact which would accrue from failure to enforce the Private Express Statutes was sufficient to confer standing to sue on NALC to enforce those laws. A fortiori, the union’s interest in the current litigation is sufficient for purposes of intervention.

The third showing that NALC must make to obtain intervention of right is that an unfavorable disposition of the action may impair the union’s ability to protect its interest in the litigation. The union need not show that substantial impairment of its interest will result, Nuesse v. Camp, 128 U.S. App.D.C. 172, 179-81, 385 F.2d 694, 701-02 (1967), nor, from the language of the Rule, *193 that impairment will definitely ensue from an unfavorable decision. Rather, the applicant for intervention need only show that the disposition “may . . . impair or impede his ability to protect [his] interest.” Fed.R.Civ.P. 24(a)(2) (emphasis added). One basis for finding impairment is the stare decisis effect flowing from an adverse decision, a danger which conceivably threatened NALC in this case. See New York Public Interest Group, Inc. v. Regents of the University of the State of New York, supra, 516 F.2d at 352 ; Nuesse v. Camp, supra, 128 U.S.App.D.C. at 781 , 385 F.2d at 702 .

Finally, while it is a somewhat closer question, I conclude that the interests of NALC are not adequately represented by the Postal Service. See New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, supra, 516 F.2d at 352 . This requirement of Rule 24(a)(2) is met upon making a minimal showing “that representation of [one’s] interest ‘may be’ inadequate.” 2 Trbovich v. United Mine Workers, 404 U.S. 528 , 538 n.10, 92 S.Ct. at 636 (1972) (emphasis added). In this case, the Postal Service’s representation of NALC’s interest may be inadequate. While both the Postal Service and NALC seek to preserve the governmentally protected monopoly over the delivery of letters, their interests may not be identical. As in New York Public Interest Research Group, Inc. v. Regents of the University of the State of New York, supra, 516 F.2d at 352 , NALC might “make a more vigorous presentation of the economic side of the argument” insofar as the delivery service affects the economic rights of union members, whereas the Postal Service’s perspective is more likely to be management-oriented. The union’s somewhat different vantage point might also lead to differences in litigation strategy. For example, NALC’s complaint in intervention requested preliminary injunctive relief, a request not made by the Postal Service in its complaint. I conclude, therefore, that NALC has made the minimal showing of inadequate representation required by Trbovich. 3

Having satisfied the requisites of Rule 24(a), NALC should have been permitted to intervene. I would reverse the judgment.

. Rule 24(a) provides in relevant part:

Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.

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

. The policy of liberalizing the right to intervene in federal actions is reflected in the change of language of Rule 24(a) in 1966. As Judge Leventhal explained:

The prior text of Rule 24 spoke in terms of whether representation by existing parties “is or may be inadequate.” The present rule provides for intervention “unless the applicant’s interest is adequately represented by existing parties.”

While the change in wording does not relate to any change in standard as such, it underscores both the burden on those opposing intervention to show the adequacy of the existing representation and the need for a liberal application in favor of permitting intervention.

Nuesse v. Camp, 128 U.S.App.D.C. 172, 180 , 385 F.2d 694, 702 (1967). See 7A C. Wright & A. Miller, Federal Practice and Procedure § 1909, at 519-22 (1972).

. The fact that the Postal Service prevailed on its motion for summary judgment, see note 1 of majority opinion, does not mean that its representation of NALC’s interests was automatically made adequate. Adequacy must be measured at least in part by the relationship between the applicant for intervention and the plaintiff, and not solely by plaintiff’s success to date in the litigation or by hindsight. The test of adequacy is the potential divergence of interest between NALC and the Postal Service as of the time intervention is sought.

Whether NALC would have been entitled to a preliminary injunction is a question not before us; it was not permitted to intervene and to make a showing of such entitlement. I fail to see, therefore, how the majority can argue that its claim to such was “without substance,” as well as how preliminary injunctive relief is the same as permanent injunctive relief.