The Eleventh Circuit applied its “anomalous rule” for intervention appeals, which makes jurisdiction turn on the merits of intervention. That’s sort of silly, and there’s a simpler option.
January 19, 2020
In United States v. 60 Automotive Grilles, the Eleventh Circuit held that it lacked jurisdiction to immediately review a decision denying intervention as of right. That was because the district court correctly denied intervention. Practically speaking, the court reviewed and affirmed the district court’s decision. But under the “anomalous rule” that the Eleventh Circuit and other courts apply, appellate jurisdiction in intervention appeals turns on whether the district court correctly denied intervention.
This anomalous rule is one of a few different rules that the circuits use to govern intervention appeals. All of these rules reach the same practical outcome: would-be intervenors can obtain immediate appellate review of decisions denying intervention. The rules differ only in how courts describe the review. And the differences are unnecessary and potentially confusing. It might be far simpler to say that all denials of intervention (or at least all denials of intervention as of right) are immediately appealable, regardless of whether the district court was correct.
The decision in 60 Automotive Grilles
60 Automotive Grilles was a civil forfeiture proceeding involving replacement automotive grilles. Customs officials seized the grilles because they bore counterfeit marks of automakers like Ford, Toyota, Mazda, Honda, and Chrysler. The importer of these grilles moved to dismiss the forfeiture action. Chrysler then sought to intervene as of right to defend its trademark and contractual rights. But the district court held that Chrysler’s interests were adequately represented by the government and denied intervention. Chrysler then appealed.
The Eleventh Circuit applied its “anomalous rule” for jurisdiction over intervention appeals. Under this rule, appellate courts have “provisional jurisdiction” to hear immediate appeals from the denial of intervention. Appellate jurisdiction exists to review denials of intervention as of right so long as the district court erred in denying intervention. And appellate jurisdiction exists to review denials of permissive intervention if the district court clearly abused its discretion. But if the district court was correct in denying intervention, the court of appeals lacks jurisdiction and must dismiss the appeal.
In 60 Automotive Grilles, the Eleventh Circuit concluded that the district court correctly denied intervention. The court could see no difference between what Chrysler sought via intervention and what the Government sought in the forfeiture action. Chrysler was thus adequately represented by an existing party. Because the district court was correct, the Eleventh Circuit lacked jurisdiction over the appeal.
The rules for intervention appeals
But, you might be asking, what’s the point of making appellate jurisdiction turn on the merits of the district court’s intervention decision? As a practical matter, the court of appeals still reviews the propriety of the intervention decision. It ultimately makes little difference whether the court of appeals exercises jurisdiction to affirm the district court’s decision or dismisses the appeal.
Some courts of appeals have nevertheless stuck with this traditional “anomalous rule” for intervention appeals. Others have relaxed it a bit, holding that they have jurisdiction to review denials of intervention as of right (but adhering to the traditional rule for denials of permissive intervention). And still other courts have gone all the way to holding that denials of intervention are always immediately appealable.
Again, all three approaches are effectively the same. And the first two—in which jurisdiction turns on the correctness of the district court’s decision—are odd uses of appellate jurisdiction. Judge Friendly made this point in Levin v. Ruby Trading Corp.:
Since this makes appealability turn on the merits, it is not a very effective or useful limitation of appellate jurisdiction; the propriety of the denial by the district judge must be examined before the appellate court knows whether it has jurisdiction, and the only consequence of the restriction on appealability is that on finding the district judge was right, it will dismiss the appeal rather than affirm.
(Quoted in 7C Wright, Miller & Kane, Federal Practice & Procedure § 1923, available at Westlaw.) So even under the anomalous rule, courts are immediately reviewing the propriety of the intervention denial. Pretending that anything otherwise is going on is unnecessary, awkward, and potentially confusing:
A court that in fact is doing everything it would do if it admitted to having jurisdiction should acknowledge that it is exercising jurisdiction. Not only is it more seemly to speak directly; accurate characterization may have some impact on . . . incidental questions . . . .
15B Wright, Miller & Cooper, Federal Practice & Procedure § 3914.18, available at Westlaw.
A rulemaking solution for intervention appeals
As Wright, Miller & Kane note, “[t]he only obstacle to following the simple rule . . . is that there is a substantial body of authority, including cases from the Supreme Court, making the more elaborate distinctions.” That is, courts might be too far along to clean this up.
Rulemaking thus might be appropriate. Under 28 U.S.C. §§ 1292(e) and 2072(c), the Supreme Court can (via the rulemaking process) create rules governing the timing of appeals. A rule governing intervention appeals might be as simple as the following:
Denials of motions to intervene under Federal Rule of Civil Procedure 24 are final decisions under 28 U.S.C. § 1291.
The normal requirements for time limits for appeals as of right would then apply unequivocally apply to intervention denials.
A rule governing intervention appeals might also take the step—suggested by Wright, Miller & Kane—of prohibiting immediate appeals from the denial of permissive intervention. These denials are reviewed under the deferential clear-abuse-of-discretion standard. And reversals are rare. As Wright, Miller & Kane note, “[t]he hope that the doctrine offers the would-be permissive intervenor is wholly illusory.” But so long as the possibility of reversal exists, parties will still appeal from the denial of permissive intervention. Rejecting these appeals outright thus might be the better rule. And although courts might be too deep into the existing rule to change, rulemakers are not.
United States v. 60 Automotive Grilles, 2020 WL 233450 (11th Cir. Jan. 15, 2020), available at the Eleventh Circuit and Westlaw.