United States v. Stringfellow

No. 84-5682 (9th Cir. June 4, 1984)

The court holds that a decision to deny intervention as of right is not immediately reviewable where conditional permissive intervention was granted, absent obvious prejudicial error. Denial of intervention is ordinarily immediately appealable, since the unsuccessful applicant for intervention is not a party and cannot appeal from the final judgment. Here the permissive intervention was arguably denied in part by virtue of the several conditions on intervention imposed by the court below, but the intervenors can still protect their interests adequately on appeal from the final decision. Intervenors' argument that the order is appealable under 28 U.S.C. § 1292(a)(1) as a denial of injunctive relief also fails because they have not gone beyond a showing that the order has the practical effect of denying an injunction to a showing of grievous consequences.

[Earlier decisions in this case are printed at 14 ELR 20381, 20385, and 20388, and the case is analyzed at 14 ELR 10224.]

Counsel are listed at 14 ELR 20381.

Before WRIGHT, SKOPIL, and NORRIS, Circuit Judges.

[14 ELR 20799]

EUGENE A. WRIGHT, Circuit Judge:

The United States and the State of California sued 31 defendants connected with the Stringfellow Acid Pits, a hazardous waste dumpsite near Glen Avon, California. The defendants are former owners of the dumpsite, persons alleged to have transported materials to the dumpsite, and those alleged to have generated materials deposited there. Plaintiffs seek recovery of costs expended in cleaning up the dumpsite and injunctive relief under federal and state statutes.

Appellants sought leave from the district court to intervene both as of right under Fed.R.Civ.P. 24(a) and permissively under Fed.R.Civ.P. 24(b). Appellants are Concerned Neighbors in Action, comprised of residents, taxpayers, and property owners in the vicinity of the dumpsite, and Penny Newman, cofounder and chair of Concerned Neighbors in Action.

The district court denied appellants' motion for leave to intervene as of right but granted permissive intervention, subject to conditions. The intervenors may not assert claims other than those asserted by the parties, may not join in plaintiffs' cost recovery claims, and may not file a motion or initiate discovery unless they confer with all parties and obtain the permission of at least one party to do so.

The intervenors appeal from the district court's denial of their motion to intervene as of right. They assert that the district court order is reviewable immediately under the collateral order doctrine of Cohen v. Beneficial Industrial Loan Corp., 337 U.S. 541, 545-47, 69 S. Ct. 1221, 1225-26, 93 L.Ed. 1528 (1949), and under 28 U.S.C. § 1292(a)(1) as the denial of injunctive relief. Plaintiffs and some defendants have moved to dismiss the appeal for lack of jurisdiction. The motions to dismiss were granted in an order entered May 1, 1984. This opinion explains our prior action.

Ordinarily, the denial of a motion for leave to intervene as of right is reviewable under 28 U.S.C. § 1291 as a final order. County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir.1980). The unsuccessful applicant for intervention is not a party and cannot appeal from the final judgment in the litigation. Brotherhood of Railway Trainmen v. Baltimore & Ohio R.R., 331 U.S. 519, 524, 67 S. Ct. 1387, 1389, 91 L.Ed. 1646 (1947). Immediate review is necessary to protect the interests of the applicant.

An order allowing intervention is not a final order, however, and is not appealable. Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir.1974). While the district court denied intervention as of right, it granted permissive intervention with restrictions.

We conclude that a denial of intervention as of right is not immediately reviewable when the district court grants permissive intervention. The intervenors' interests are protected adequately by their participation as permissive intervenors. See Wheeler v. American Home Products Corp., 582 F.2d 891, 894-97 (5th Cir.1977).

[14 ELR 20800]

Because the district court imposed conditions upon appellants' intervention, however, arguably the permissive intervention was denied in part. See Van Hoomissen, 497 F.2d at 181. Denial of permissive intervention is appealable if there is an abuse of discretion. Id.

Two other circuits have held that imposing restrictions on intervention as of right does not render that decision immediately reviewable. Kartell v. Blue Shield, Inc., 687 F.2d 543, 549-50 (1st Cir.1982); Shore v. Parklane Hosiery Co., 606 F.2d 354, 357 (2d Cir.1979). Those courts stated that because the intervenors were allowed to intervene as parties with full appellate rights, they could protect their interests adequately on appeal from a final decision. Kartell, 687 F.2d at 550; Shore, 606 F.2d at 357. Both courts noted the strong federal policy against piecemeal appeals. Kartell, 687 F.2d at 550; Shore, 606 F.2d at 357.

For the same reasons, we conclude that imposing restrictions on permissive intervention does not render that decision immediately reviewable, absent obvious prejudicial error. See Shore, 606 F.2d at 357. We find no such error here. The appellants can protect their interests adequately on appeal from the final decision.

Appellants' assertion that the order is appealable under 28 U.S.C. § 1292(a)(1) as a denial of injunctive relief is meritless also. To establish appealability under that section, they "must show more than that the order has the practical effect of refusing an injunction." Carson v. American Brands, Inc., 450 U.S. 79, 84, 101 S. Ct. 993, 996, 67 L. Ed. 2d 59 (1981). They have not shown the requisite "serious, perhaps irreparable, consequence[s]" or inability to challenge the order effectually at some other point. Id.

The motions to dismiss this appeal are granted. The dismissal is without prejudice to the intervenors' right to appeal after the district court enters a final decision.