Garrity v. Gallen

• Decision Date: 02 February 1983
• Docket Number: No. 82-1325,82-1325
• Citation: 697 F.2d 452
• Parties: 8 Ed. Law Rep. 926 Sandra GARRITY, et al., Plaintiffs, Appellees, v. Hugh J. GALLEN, et al., Defendants, Appellees. Appeal of SALEM SCHOOL DISTRICT, et al.
• Court: U.S. Court of Appeals — First Circuit

Page 452

697 F.2d 452

8 Ed. Law Rep. 926

Sandra GARRITY, et al., Plaintiffs, Appellees, v. Hugh J. GALLEN, et al., Defendants, Appellees.

Appeal of SALEM SCHOOL DISTRICT, et al.

No. 82-1325.

United States Court of Appeals,

First Circuit.

Argued Sept. 16, 1982.

Decided Jan. 10, 1983.

Rehearing Denied Feb. 2, 1983.

Gerald M. Zelin, Salem, N.H., with whom Soule, Leslie, Bronstein & Zelin, Salem, N.H., was on brief, for appellants.

Mark L. Gross, Atty., Dept. of Justice, Washington, D.C., with whom W. Stephen Thayer, III, U.S. Atty., Concord, N.H., Wm. Bradford Reynolds, Asst. Atty. Gen., and Jessica Dunsay Silver, Atty., Dept. of Justice, Washington, D.C., were on brief, for appellee U.S.

John D. MacIntosh, Concord, N.H., with whom Richard A. Cohen, Manchester, N.H., was on brief, for Sandra Garrity, et al., plaintiffs, appellees.

Before COFFIN, Chief Judge, DAVIS ^* and BOWNES, Circuit Judges.

OSCAR H. DAVIS, Circuit Judge.

The sole question we need consider is whether the district court abused its discretion in denying as untimely the application of Salem School District, several other school districts, and the New Hampshire School Administrators Association (applicants) to intervene in the main action. Applicants sought intervention of right under Fed.R.Civ.P. 24(a), as well as permissive intervention under Fed.R.Civ.P. 24(b). We hold that the district court did not abuse its discretion in ruling that the attempted intervention was untimely, and therefore affirm.

I.

The principal case has a somewhat protracted history. ¹ In April 1978, the first-named plaintiff Sandra Garrity--together with five other developmentally disabled individuals residing at Laconia State School and Training Center (LSS) ² as well as the New Hampshire Association for Retarded Citizens--brought suit in the district court against the Governor of New Hampshire; the Commissioner of the State Department of Education; the Commissioner of the State Department of Health and Welfare; the Director of the Division of Mental Health; the Superintendent of LSS; and several other official defendants. The plaintiffs sought declaratory and injunctive relief against the defendants, predicating their complaint upon 42 U.S.C. Sec. 1983 (1976) and alleging that defendants had violated provisions of the Education for All Handicapped Children Act, 20 U.S.C. Sec. 1400 et seq. (1976 & Supp. IV 1980); the Developmentally Disabled Assistance and Bill of Rights Act, 42 U.S.C. Sec. 6000 et seq. (1976 & Supp. II 1978); and the Rehabilitation Act, 29 U.S.C. Sec. 701 et seq. (1976 & Supp. II 1978).

In November 1978, the United States sought and received leave to intervene as a plaintiff, asserting that defendants had interfered with federal law and policy concerning assistance to developmentally disabled citizens. In February 1980, after extensive discovery, the district court denied defendants' motion to dismiss the United States' complaint in intervention, and certified the case as a class action. The court defined the plaintiffs' class as consisting of all developmentally disabled individuals who were then, or would be in the future, residents at LSS. In addition, the court established a subclass of plaintiffs--persons between the ages of three and twenty-one whose rights under the Education for All Handicapped Children Act (EHCA) may have been violated. See Garrity v. Gallen, 522 F.Supp. 171, 176 (D.N.H.1981).

The trial commenced in April 1980 and continued for over forty days, ending in late June 1980. All parties agree that the trial received extensive media coverage, the district court judicially noting that "scarcely a single trial day did not result in at least one article in the only newspaper published in New Hampshire which affords state-wide coverage." Garrity v. Gallen, No. 78-116-D, slip op. at 1 (D.N.H. Jan. 26, 1982) (order).

While the case awaited decision by the district court, the New Hampshire legislature considered, and passed, a "special education" statute, N.H.Rev.Stat.Ann. Sec. 186-C (Supp.1981) (effective July 1981). The legislature designed this measure to be a counterpart to the federal EHCA; in effect, it may be characterized as the state's then attempt to comply with the EHCA mandate that all handicapped children receive a "free and appropriate" public education. See Garrity, supra, 522 F.Supp. at 221. One of the most noteworthy effects of Sec. 186-C was its reallocation of fiscal responsibility for the education of handicapped children. Essentially, the statute placed a ceiling on the amount to be appropriated by the state legislature each year for education of the handicapped. See N.H.Rev.Stat.Ann. Sec. 186-C: 18 (Supp.1981). The Act also required each local school district to bear most of the expense of providing handicapped children who formerly resided in their district (but now live at LSS) with an education that complied with the EHCA. Id. Sec. 186-C: 13 (Supp.1981); see Garrity, supra, 522 F.Supp. at 221-23.

The special education bill was signed by then-Governor Thompson in June 1981, and took effect on July 1, 1981. On August 17 of that year, the district court issued its lengthy opinion. In relevant part, the court concluded that defendants had committed numerous violations of the Rehabilitation Act, and of the EHCA and related state statutes, and directed counsel to draft a plan of implementation, or a consent decree, to provide relief to the plaintiff class. Garrity, supra, 522 F.Supp. at 244. ³

By order of November 16, 1981, the court approved an implementation plan submitted by defendants, with some substantial modifications. This order was embodied in a "judgment" entered November 25, 1981.

Applicants did not seek intervention until January 25, 1982--two months after district court approval of the implementation plan, over five months after that court's basic opinion, and almost seven months after the effective date of the new New Hampshire special education statute. Under the then view that the district court's final decision had been rendered on November 25, 1981, January 25, 1982 was the last day, under Rule 4(a)(1) of the Federal Rules of Appellate Procedure, for filing a notice of appeal. In fact, several hours after applicants filed their petition to intervene, defendants filed a notice of appeal. ⁴ The district court denied applicants' intervention petition on January 26, and again on reconsideration on April 2, 1982, finding that the request for intervention was untimely. ⁵

II.

The Federal Rules of Civil Procedure require that intervention--whether "of right" or "permissive"--be timely. See Fed.R.Civ.P. 24(a), 24(b). The timeliness requirement was not designed to penalize prospective intervenors for failing to act promptly; rather, it insures that existing parties to the litigation are not prejudiced by the failure of would-be intervenors to act in a timely fashion. McDonald v. E.J. Lavino Co., 430 F.2d 1065, 1074 (5th Cir.1970) (citing Note, The Requirement of Timeliness Under Rule 24 of the Federal Rules of Civil Procedure, 37 VA.L.REV. 863, 867 (1951)). The determination of timeliness is within the sound discretion of the district court; we cannot disturb the district court's findings on this point unless an abuse of discretion has been demonstrated. NAACP v. New York, 413 U.S. 345, 366, 93 S.Ct. 2591, 2603, 37 L.Ed.2d 648 (1973); Culbreath v. Dukakis, 630 F.2d 15, 24 (1st Cir.1980). And when intervention is sought after approval of a plan of implementation, amounting to a consent decree, a stronger case must be made to justify intervention. See Alaniz v. Tillie Lewis Foods, 572 F.2d 657, 659 (9th Cir.) (per curiam), cert. denied, 439 U.S. 837, 99 S.Ct. 123, 58 L.Ed.2d 134 (1978). There is a comparable principle for intervention after final judgment. See United States v. Associated Milk Producers, Inc., 534 F.2d 113, 116 (8th Cir.), cert. denied, 429 U.S. 940, 97 S.Ct. 355, 50 L.Ed.2d 309 (1976). ⁶

In denying leave to intervene, the district court applied the timeliness analysis that this court used in Culbreath, supra, 630 F.2d at 20-24. That test considers four factors: (1) the length of time the applicants knew, or reasonably should have known, of their interest before they petitioned to intervene, id. at 20; (2) the prejudice to existing parties due to the applicants' failure to petition for intervention promptly, id. at 21; (3) the prejudice that applicants would suffer if they were not allowed to intervene, id. at 22; and (4) unusual circumstances militating for or against intervention, id. at 24.

III.

As applied to this case, the Culbreath factors lead us to conclude that the court below did not abuse its discretion in determining timeliness, which "is to be determined from all the circumstances." NAACP v. New York, supra, 413 U.S. at 366, 93 S.Ct. at 2603.

First, applicants should have known of their interest in the case long before they chose to intervene. Although they claim that they did not have actual knowledge of their interest until December 1981, when they allegedly first learned of the precise terms of the November order of implementation, the extensive media coverage of the trial--coupled with the pleadings, the enactment of the New Hampshire special education statute in June 1981, and the court's decision of August 1981--should have alerted them to the fact that they had an obvious interest in the outcome of the litigation.

The record contains numerous press clippings from several New Hampshire and Massachusetts newspapers detailing instances of media attention from the filing of the complaint through the trial testimony of several witnesses. Many of these articles depicted plaintiffs' suit as an attempt to close LSS--a matter in which applicants say they had little direct interest because it would not bear on their own concern for local education. But the fact is that several of those articles specifically portrayed the litigation as an attempt to place LSS...