Independent Standing Is Required To Support Permissive Intervention After Case Is Dismissed
BOND v. UTRERAS (November 10, 2009)
Diane Bond filed a § 1983 action against the City of Chicago and several police officers in 2004. The parties settled. The court entered an agreed order of dismissal on March 23, 2007. About a week earlier, however, journalist Jamie Kalven filed a petition to intervene. Kalven sought to modify a protective order in the case and to obtain access to documents produced during discovery. The City opposed access -- Bond did not substantively respond to the petition. The court granted the motion to intervene and rescinded the protective order. The City appeals.
In their opinion, Judges Kanne, Sykes and Tinder (concurring) vacated and remanded. Although the Court recognized its earlier decisions allowing permissive intervention to challenge a protective order, it emphasized that those cases involved ongoing litigation or access to records in the court file. Here, neither of those conditions is present. The case was over and none of the records sought were ever filed with the court. Therefore, stated the Court, the lower court should have addressed Kalven’s standing. Standing requires that an actual controversy exist at all stages of the proceeding. The Court noted that the circuit had never addressed the relationship between Article III standing and the rule for permissive intervention. This is not a typical permissive intervention case -- where the party seeks to come into an ongoing case on the side of one of the parties. Specifically not addressing whether standing is required for permissive intervention in an ongoing case, the Court concluded that independent standing was required to intervene in a case to challenge a protective order after the case was dismissed. The Court then rejected Kalven's standing on both right to discovery and First Amendment grounds. The Court based the former on the fact that none of the discovery sought had been filed with the court. The general right of public access to court documents is not implicated. The latter was based on the fact that the parties in the litigation stipulated to the protective order. No one placed any limitation on another's speech. Finally, the Court rejected any notion that the revocation of the protective order was within the lower court's inherent power.
Judge Tinder concurred in the result. He got there differently, however. Judge Tinder believed that Kalven had standing based on the public's general right of access to judicial proceedings. He concluded, however, given the timing of the request and the lack of a sufficient showing of abuse with respect to the protective order, that the district court erred on the merits.
A lawyer for the city of Peoria sought and obtained a warrant for the arrest of Joshua Thomas. Joshua’s crime -- nine unpaid parking tickets. Sometime later, Joseph Thomas was stopped for a traffic violation. Although the names and addresses of Joshua and Joseph did not match, the driver's license number on the arrest warrant for Joshua did match that of Joseph. Joseph was arrested. He was later released when it was determined that he was, indeed, not Joshua. Joseph brought an action under § 1983 against the City and the lawyer who obtained the warrant. He alleged a deprivation of his Fourth Amendment and due process rights. The court dismissed for failure to state a claim. He then denied class certification. Thomas appeals.
A Wisconsin statute prohibits a gasoline retailer from selling its product below cost plus a defined markup. The statute contains both state and private remedies of both an injunctive and damages nature. Flying J is such a gasoline retailer. It sued the state, seeking to enjoin enforcement of the statute on the grounds that it was preempted by the Sherman Act. The district court granted the injunction. During the time period for taking an appeal, the state decided not to appeal. An association of gasoline retailers asked the district court for leave to intervene both as of right under Rule 24(a)(2) and as permissive under Rule 24(b)(1)(B). The court denied the intervention on the grounds that it was untimely and that the association's members lacked the requisite interest. The association appeals.
For almost 100 years, the United States government has operated a gun range on the shores of Lake Michigan just north of Chicago. Bullets and shotgun pellets ended up in the lake. These bullets and pellets contain lead, a toxic substance potentially harmful to human health. Steven Pollock is an attorney who lives approximately 13 miles from the range. He is also the executive director of an environmental group interested in the protection of Lake Michigan. Pollock and the environmental group brought a suit against the United States, alleging that the release of lead into the lake violated several federal environmental laws. The plaintiffs supported their standing by submitting the affidavits of Pollock and another group member. They stated that they enjoyed watching birds and visiting parks in the general vicinity of the range, they drank water from the lake and they ate fresh and saltwater fish. The district court dismissed the complaint for lack of standing. Plaintiffs appeal.
For almost ten years, John Crichton purchased group health insurance from Golden Rule Insurance Co. He did so as a member of the Federation of American Consumers and Travelers ("Federation"). He filed a class action in 2002, alleging violations of the Illinois Consumer Fraud and Deceptive Business Practices Act ("ICFA"), class allegations under other states’ consumer fraud statutes, RICO and common law fraud. The basis of each of the claims was that Golden Rule failed to disclose, when it sold its insurance, that renewal premiums escalated dramatically. The district court dismissed the claims for failure to state a cause of action. Crichton appeals.
Apex brought a breach of contract claim against Sears, alleging Sears owed it in excess of $80 million. Sears moved to dismiss for a lack of subject matter jurisdiction. It asserted that Apex lacked standing because it had assigned away its rights in the Sears receivables. Sears attached to its motion a letter from Apex attesting to that fact. When Apex offered no response, the district court granted Sears' motion. Apex appeals.
A number of investors sold 10-year U.S. Treasury notes short and, between May 9 and June 30, 2005, bought futures contracts in settlement of their obligations. These investors brought a class action against Pacific Investment Management Co. (PIMCO), alleging that PIMCO violated the Commodity Exchange Act by cornering the market in certain Treasury notes. The class alleges that PIMCO increased its ownership of the notes to the point where it created a monopoly price, resulting in losses to the class of more than $600 million. PIMCO challenged the class definition. It pointed out that many class members did not lose money because of the net effects of multiple trades. The district court certified the class. PIMCO appeals.
Congress enacted the Agricultural Marketing Agreement Act of 1937 (“AMAA”) to regulate the milk producing industry. The AMAA establishes a minimum uniform price for milk in a particular region without regard to its end use. The Department of Agriculture (“USDA”) promulgates milk marketing orders in the different regions. The marketing orders identify the plants and handlers that are regulated. They also determine whether a particular supply of milk is included in the calculation of the blended price for the milk and whether a particular supply receives that price. A diversion limit is the maximum amount of milk a handler can divert to a plant not participating in the program and still be entitled to the blended price. In early 2005, the USDA began a rulemaking addressed at reducing the diversion limit standards. White Eagle Cooperative, a cooperative of milk producers, opposed the amendment. The USDA conducted a hearing in March and issued a interim rule on an emergency basis in July. The interim rule did reduce the diversion limits and became effective in October. A similar final rule was issued in 2006. White Eagle filed a complaint in federal district court. White Eagle alleged that the USDA: a) violated due process by allowing employees of the program administrator to participate in the rulemaking process, b) violated the Regulatory Flexibility Act (“RFA”) by failing to do the proper analysis and support its certification, c) violated the Administrative Procedure Act (“APA”) by failing to support its emergency rule, d) improperly delegated rulemaking authority, e) violated the AMAA by considering end use in its rulemaking, and f) violated the APA by making a decision without adequate record support. The district court granted summary judgment to the USDA. White Eagle appeals.