Massachusetts School of Law at Andover, Inc. v. U.S.

• Decision Date: 15 July 1997
• Docket Number: No. 96-5247,96-5247
• Citation: 118 F.3d 776
• Parties: , 1997-2 Trade Cases P 71,862, 38 Fed.R.Serv.3d 44, 120 Ed. Law Rep. 43 MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., Proposed Intervenor, Plaintiff-Appellant v. UNITED STATES of America, Plaintiff-Appellee American Bar Association, Defendant-Appellee.
• Court: U.S. Court of Appeals — District of Columbia Circuit

Page 776

118 F.3d 776

326 U.S.App.D.C. 175, 1997-2 Trade Cases P 71,862,

38 Fed.R.Serv.3d 44, 120 Ed. Law Rep. 43

MASSACHUSETTS SCHOOL OF LAW AT ANDOVER, INC., Proposed Intervenor, Plaintiff-Appellant v. UNITED STATES of America, Plaintiff-Appellee American Bar Association, Defendant-Appellee.

No. 96-5247.

United States Court of Appeals District of Columbia Circuit.

Argued May 8, 1997.

Decided July 15, 1997.

Appeal from the United States District Court for the District of Columbia (No. 95cv01211).

Lawrence R. Velvel, Washington, DC, argued the cause and filed the brief for appellant.

David Seidman, Attorney, U.S. Department of Justice, Washington, DC, argued the cause for appellee United States of America. With him on the brief were Joel I. Klein, Acting Assistant Attorney General, A. Douglas Melamed, Deputy Assistant Attorney General, and Catherine G. O'Sullivan, Attorney.

Roger E. Warin, Washington, DC, argued the cause for appellee American Bar Association. With him on the brief were David L. Roll and David R. Stewart.

Before WALD, WILLIAMS and RANDOLPH, Circuit Judges.

Opinion for the Court filed by Circuit Judge STEPHEN F. WILLIAMS.

Opinion concurring in the judgment filed by Circuit Judge WALD.

STEPHEN F. WILLIAMS, Circuit Judge:

On June 27, 1995 the Department of Justice filed a complaint in district court here against the American Bar Association, alleging that through its control of law school accreditation the ABA had violated § 1 of the Sherman Act by, among other things, fixing law school faculty salaries. Simultaneously, the Department filed a proposed consent decree prohibiting certain conduct and ordering structural changes in the ABA Section on Legal Education. Following the procedure for the entry of consent judgments prescribed by the Tunney Act, 15 U.S.C. § 16(b)-(d)(1994), the Department filed a competitive impact statement with the district court and then published both the statement and the proposed consent judgment in the Federal Register for public comment. Nearly a year later, after several modifications had been made, the district court found the proposed settlement to be in the public interest, see id. § 16(e), and entered judgment.

The Massachusetts School of Law at Andover ("MSL" or the "School") is a state-accredited law school that has unsuccessfully sought ABA accreditation. In November 1993 it filed a private antitrust action against the ABA in the Eastern District of Pennsylvania, alleging many of the same anticompetitive practices that the Department later charged the ABA with here. It lost in the trial court and (after this case was argued) on appeal. See Massachusetts School of Law at Andover v. ABA, 107 F.3d 1026 (3d Cir.1997).

Before the district court here MSL objected to the proposed settlement agreement on the grounds that it should go further in remedying the alleged antitrust violations and should contain a more effective enforcement mechanism. MSL also claimed that the Department had failed to, and should be required to, file documents that were "determinative in formulating [the proposed consent judgment]," 15 U.S.C. § 16(b), and that approval of the judgment should be conditioned upon disclosure of information acquired in the course of the Department's investigation.

MSL used a number of channels to advance its position. It submitted written comments in response to the Federal Register publication, as provided for by 15 U.S.C. § 16(d). It moved to intervene in the district court proceedings, and in the alternative to participate as amicus curiae. And on entry of judgment, it sought to intervene in the district court for purposes of appeal. The court granted amicus status but denied both intervention motions. MSL now appeals from the denial of its motion for intervention for purposes of appeal and from entry of the consent judgment. We affirm the denial of intervention for purposes of appeal, except with respect to the disclosure issue. On the merits of the latter, we find that the district court properly rejected the School's claim that evidentiary material from the Department's investigation should be made public.

* * *

The Tunney Act provides that before a settlement agreement between the Department and a party charged with violating the antitrust laws can take effect, "the court shall determine that the entry of such judgment is in the public interest." 15 U.S.C. § 16(e). The court may employ a wide variety of techniques in gathering information about the proposed judgment and coming to a decision, one of which is to allow intervention by interested parties:

[T]he court may ... authorize full or limited participation in proceedings before the court by interested persons or agencies, including appearance amicus curiae, intervention as a party pursuant to the Federal Rules of Civil Procedure, examination of witnesses or documentary materials, or participation in any other manner and extent which serves the public interest as the court may deem appropriate.

Id. § 16(f)(3).

The Act directs us to look to the Federal Rules of Civil Procedure for the legal standard governing intervention. MSL suggests, however, that those rules have no application where intervention is sought solely for purposes of filing an appeal. It notes that 15 U.S.C. § 16(f)(3) speaks of "participation in proceedings before the court," but that, if the district court grants intervention solely for purposes of appeal, no participation whatsoever in the district court will result (disregarding, of course, whatever might occur in the event of a reversal). But even if MSL were right on the narrow issue of 15 U.S.C. § 16(f)(3), that would do no more than remove that provision from consideration, at which point we would go right back to the Federal Rules of Civil Procedure. Although those rules nominally apply only to "procedure in the United States district courts," Fed.R.Civ.P. 1, we apply them--specifically Rule 24--to interventions solely for purposes of appeal. Smuck v. Hobson, 408 F.2d 175, 176-82 (D.C.Cir.1969); see also United Airlines v. McDonald, 432 U.S. 385, 390, 97 S.Ct. 2464, 2467-68, 53 L.Ed.2d 423 (1977) (upholding, against claim that attempted intervention was untimely, circuit court decision treating intervention for purposes of appeal as governed by Rule 24). ¹ In addition, the Supreme Court has observed that the Rules' "policies underlying intervention may be applicable in appellate courts," International Union v. Scofield, 382 U.S. 205, 217 n. 10, 86 S.Ct. 373, 381 n. 10, 15 L.Ed.2d 272 (1965), and we have held that intervention in the court of appeals is governed by the same standards as in the district court, Building & Construction Trades Dept. v. Reich, 40 F.3d 1275, 1282-83 (D.C.Cir.1994).

The parties have assumed that we review the district court's application of Rule 24 for abuse of discretion. Indeed, that is what we said with respect to intervention in proceedings before the district court in Building & Construction Trades Dept., 40 F.3d at 1282. Although in this case the scope of review makes no difference because of our agreement with the district court, it deserves a brief detour to note some complications.

While in Building & Construction Trades Dept. we did not explicitly distinguish between intervention of right and permissive intervention, other courts and even this court have done so in the past. See Edwards v. Houston, 78 F.3d 983, 995 (5th Cir.1996) (en banc); Foster v. Gueory, 655 F.2d 1319, 1324 (D.C.Cir.1981); Hodgson v. United Mine Workers of America, 473 F.2d 118, 127 n. 40 (D.C.Cir.1972). Yet, except as intervention as of right may be likely to involve more pure issues of law, which would be reviewed de novo, cf. Air Line Pilots Ass'n Int'l v. Eastern Air Lines, Inc., 863 F.2d 891, 894-95 (D.C.Cir.1988) (explaining that although formula for review of preliminary injunction is abuse of discretion, issues of law are reviewed de novo), it is not apparent that that distinction should be important. It would seem that it is only at the level of the particular issue (or subissue) that one can make sensible distinctions. Thus, in Hodgson v. United Mine Workers, 473 F.2d 118, 125 n. 26 (D.C.Cir.1972), we noted the existence of district court discretion over the timeliness and adequacy of representation issues under Rule 24(a)(2), and over Rule 24(b)(2) determinations generally.

On the other hand, so far as intervention solely for purposes of appeal is concerned, we note that the effect of a decision on such intervention will often be indistinguishable from the effect of a decision on a motion to intervene in an appeal in the court of appeals a decision that we necessarily make quite independently and that, as we said inBuilding & Construction Trades Dept., is governed by the same standards as the district court's decision. It would be paradoxical for us to affirm a district court's denial of intervention for purposes of appeal on deference principles, and then turn around and grant intervention in this court. That paradox of course disappears where only the would-be intervenor seeks to appeal and we affirm the district court's denial of intervention, leaving no appeal in which to intervene; but that leaves a still greater paradox--the court of appeals deferring to the district court on whether to hear an appeal from its judgment. And the paradox is heightened where it turns out that the intervention determination is tied to the merits, as proves the case here. See pp. 782-83 below. Further, for both (intervention for purposes of appeal, intervention in an appeal), the effects are felt--at least initially--in the court of appeals. Finally, we note that our decisions on district court intervention solely for purposes of appeal have by no means always indicated any particular deference, see, e.g., Smuck v. Hobson, 408 F.2d at 177-82, nor have those of other circuits, see, e.g., Romasanta v. United Airlines, 537 F.2d 915, 917-20 (7th...