Doe v. Glickman, 00-50832

• Decision Date: 18 July 2001
• Docket Number: No. 00-50832,00-50832
• Parties: (5th Cir. 2001) JOHN DOE #1, for and on behalf of themselves and a Class of Others Similarly situated; JOHN DOE #2, for and on behalf of themselves and a Class of Others Similarly situated; TEXAS FARM BUREAU; THE AMERICAN FARM BUREAU FEDERATION; JOHN DOE #3, Plaintiffs-Appellees, v. DANIEL GLICKMAN, Etc; ET AL, Defendants, ANIMAL PROTECTION INSTITUTE, Movant-Appellant. SUMMARY CALENDAR
• Court: U.S. Court of Appeals — Fifth Circuit

Page 371

256 F.3d 371 (5th Cir. 2001)

JOHN DOE #1, for and on behalf of themselves and a Class of Others Similarly situated; JOHN DOE #2, for and on behalf of themselves and a Class of Others Similarly situated; TEXAS FARM BUREAU; THE AMERICAN FARM BUREAU FEDERATION; JOHN DOE #3, Plaintiffs-Appellees, v. DANIEL GLICKMAN, Etc; ET AL, Defendants, ANIMAL PROTECTION INSTITUTE, Movant-Appellant.

No. 00-50832

SUMMARY CALENDAR

UNITED STATES COURT OF APPEALS For the Fifth Circuit

July 18, 2001

REVISED JULY 20, 2001

[Copyrighted Material Omitted] Appeal from the United States District Court for the Western District of Texas

Before REYNALDO G. GARZA, BARKSDALE, and STEWART, Circuit Judges.

REYNALDO G. GARZA, Circuit Judge:

The Appellant, the Animal Protection Institute ("the Institute"), appeals the Waco Federal District Court's dismissal of its motion to intervene in Doe v. Glickman, CV No. W-99-CA-335. For the reasons stated below, we Reverse.

1. Factual and Procedural Background.

This case arises out of the Institute's request that the United States Department of Agriculture ("USDA"), acting through Wildlife Services and the Animal Plant Health Inspection Service, disclose information concerning the Livestock Protection Collar Program ("Program"), including the names and locations of the Program's participants. A livestock protection collar ("Collar") is a device designed to protect livestock by killing their predators. The Collar fastens around the livestock's neck and has a pouch that contains sodium fluoroacetate, commonly known as Compound 1080. When predators such as coyotes or mountain lions attack livestock, they usually bite the domesticated animal's neck. When a predator bites the neck of a domesticated animal equipped with a Collar, the Collar releases sodium fluorocetate, thereby poisoning and killing the predator.

On November 18, 1998, pursuant to the Freedom of Information Act ("Act"),¹ the Institute formally requested the USDA to disclose information concerning the Program and the Collar's use in seven states. The USDA disclosed the requested information concerning the Program and the Collar's use, but only as to five of the seven states. The USDA refused to disclose any of the information concerning the Program or the Collar's use in Texas or New Mexico. The Institute filed a supplemental request with the USDA seeking that information. On May 27, 1999, the USDA disclosed some information concerning the Program and the Collar's use in Texas and New Mexico, but did not disclose the names and locations of the Program's participants from those states ("Identifying Information"). The USDA withheld the Identifying Information pursuant to 5 U.S.C. § 552b (c)(6).²

The Institute filed an administrative appeal. The USDA did not respond. In response, on August 31, 1999, the Institute sued the USDA in Washington, D.C. District Court, Animal Prot. Inst. v. Wildlife Services, CV No. 99-2324 ("D.C. Lawsuit"), seeking the disclosure of the Identifying Information pursuant to the Act. Because of the D.C. Lawsuit, the USDA prepared to disclose the Identifying Information to the Institute on October 29, 1999.

On October 29, 1999, counsel for the American Farm Bureau Federation ("Plaintiff's Counsel") learned that the USDA intended to disclose the Identifying Information that afternoon. Plaintiff's Counsel contacted the Assistant United States Attorney ("AUSA") representing the USDA and asked the AUSA to delay disclosing the Identifying Information until November 3, 1999 so that she could evaluate her client's legal options. The AUSA pledged not to disclose the Identifying Information that afternoon, but warned that it was possible that the USDA would disclose the Identifying Information on November 1, 1999.

On November 1, 1999, before the USDA disclosed the Identifying Information, the Appellees, aware of the D.C. Lawsuit and rather than intervene in that lawsuit, filed a separate lawsuit against the USDA in Waco Federal District Court ("Waco Court"), Doe v. Glickman, CV No. W-99-CA-335 ("Waco Lawsuit"). The Appellees sought a temporary restraining order ("TRO") to enjoin the USDA from disclosing the Identifying Information. They alleged that the disclosure would be a clearly unwarranted invasion of privacy, not outweighed by the public's interest in the Identifying Information. At 3:00 p.m. that same day, the Waco Court granted the TRO ex parte. Three days later, on November 4, 1999, the Institute learned of the Waco Lawsuit through a press release announcing the issuance of the TRO. On November 15, 1999, the Waco court entered a stipulated and agreed preliminary injuction.

The USDA filed motions with the Waco Court to transfer venue in the Waco Lawsuit to the Washington, D.C. District Court ("D.C. Court") and, alternatively, stay the Waco Lawsuit pending the D.C. Lawsuit. The Appellees responded. On January 20, 2000, the Waco Court denied both of the USDA's motions.

Having failed to stay or transfer the Waco Lawsuit to the D.C. Court, the USDA filed a motion to stay the D.C. Lawsuit with the D.C. Court. The Institute filed a response opposing the USDA's motion. After considering the motion and response, the D.C. Court, on June 13, 2000, stayed the D.C. Lawsuit pending the outcome of the Waco Lawsuit. The Institute, on July 12, 2000, filed a motion to intervene in the Waco Lawsuit with the Waco Court. The Institute sought an intervention of right or, alternatively, a permissive intervention. The Appellees opposed the Institute's motion, arguing that it was untimely and that allowing the Institute to intervene would be prejudicial. On August 8, 2000, the Waco Court denied the Institute's motion to intervene. On August 28, 2000, the Institute filed its notice of interlocutory appeal from the denial of its motion to intervene in the Waco Lawsuit.

2. Discussion.

This appeal presents us with the issue of whether we should allow the Institute to intervene in the Waco Lawsuit. The Institute argues that it is entitled to an intervention of right or, alternatively, to a permissive intervention. The Appellees contend that the Institute is neither entitled to an intervention of right or a permissive intervention since the Institute's motion to intervene was untimely and the USDA can adequately protect the Institute's interests. Because of our resolution of this case, we need not reach the merits of whether the Institute is entitled to a permissive intervention.

2.1 The Institute is entitled to an intervention of right.

Federal Rule of Civil Procedure 24(a) governs interventions of right. FED. R. CIV. P. 24(a); Ruiz v. Estelle, 161 F.3d 814, 827 (5th Cir. 1998). It states, in pertinent part:

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

FED. R. CIV. P. 24(a) (2000). "Federal courts should allow intervention where no one would be hurt and the greater justice could be attained." Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). Thus, a party is entitled to an intervention of right if (1) the motion to intervene is timely; (2) the potential intervener asserts an interest that is related to the property or transaction that forms the basis of the controversy in the case into which she seeks to intervene; (3) the disposition of that case may impair or impede the potential intervener's ability to protect her interest; and (4) the existing parties do not adequately represent the potential intervener's interest. Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001); Edwards v. City of Houston, 78 F.3d 983, 1000 (5th Cir. 1996); Espy, 18 F.3d at 1204-05; Stallworth v. Monsanto Co., 558 F.2d 257, 263-67 (5th Cir. 1977). Generally, we review the denial of an intervention of right de novo. Ruiz, 161 F.3d at 827.

2.11 The Institute's motion to intervene was timely.

"The requirement of timeliness is not a tool of retribution to punish the tardy would-be intervener, but rather a guard against prejudicing the original parties by the failure to apply sooner." Espy, 18 F.3d at 1205. "[A motion to intervene's] timeliness is to be determined from all the circumstances." Edwards, 78 F.3d at 1000. "Th[is] analysis is contextual; absolute measures of timeliness should be ignored." Espy, 18 F.3d at 1205. A court should ignore "[h]ow far the litigation has progressed when intervention is sought[,] . . . the amount of time that may have elapsed since the institution of the action . . . [, and] the likelihood that intervention may interfere with orderly judicial processes." Stallworth, 558 F.2d at 266.

When determining whether a motion to intervene is timely, a court must consider the following four factors: (1) how long the potential intervener knew or reasonably should have known of her stake in the case into which she seeks to intervene; (2) the prejudice, if any, the existing parties may suffer because the potential intervener failed to intervene when she knew or reasonably should have known of her stake in that case; (3) the prejudice, if any, the potential intervener may suffer if the court does not let her intervene; and (4) any unusual circumstances that weigh in favor of or against a finding of timeliness. Id. at 264-66; Ford, 242 F.3d at 239; Ruiz, 161 F.3d at 827; Edwards, 78 F.3d at 1000; Espy, 18 F.3d at 1205. These factors are a framework and "not a formula for determining timeliness." Edwards, 78 F.3d at 1004. A motion to intervene may still be timely even if all the factors do not weigh in favor of a finding of timeliness. Stallworth, 558 F.2d at 267.

If a court denies a motion to intervene because it was untimely, we...