Karr v. Castle

• Decision Date: 19 July 1991
• Docket Number: Civ. A. No. 88-466 MMS.
• Citation: 768 F. Supp. 1087
• Parties: Jon T. KARR, Plaintiff, v. The Honorable Michael N. CASTLE, Governor of Delaware; Brigadier General Oscar E. Trivits, the Assistant Adjutant General for Army; Colonel Anthony J. Quattro, Chief of Staff for Army; Lieutenant Colonel Norman V. Cochran, Deputy Director of Personnel for Army, ex officio and in personam, their successors and assigns; Major General Arthur Episcopo, the Adjutant General of Delaware, ex officio; Major General Joseph M. Lank, in personam; the Department of Military Affairs, and the State of Delaware, Defendants, and United States of America, Intervening Defendant.
• Court: U.S. District Court — District of Delaware

768 F. Supp. 1087

Jon T. KARR, Plaintiff, v. The Honorable Michael N. CASTLE, Governor of Delaware; Brigadier General Oscar E. Trivits, the Assistant Adjutant General for Army; Colonel Anthony J. Quattro, Chief of Staff for Army; Lieutenant Colonel Norman V. Cochran, Deputy Director of Personnel for Army, ex officio and in personam, their successors and assigns; Major General Arthur Episcopo, the Adjutant General of Delaware, ex officio; Major General Joseph M. Lank, in personam; the Department of Military Affairs, and the State of Delaware, Defendants and United States of America, Intervening Defendant.

Civ. A. No. 88-466 MMS.

United States District Court, D. Delaware.

July 19, 1991.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

John S. Malik, Wilmington, Del., John D. McLaughlin, Jr., Goshen, Ky., for plaintiff.

John J. Polk, Deputy Atty. Gen., Dept. of Justice, Wilmington, Del., for defendants.

William C. Carpenter, Jr., U.S. Atty., Kent A. Jordan, Asst. U.S. Atty., Dept. of Justice, Wilmington, Del., Stuart M. Gerson, Asst. Atty. Gen., Vincent M. Garvey, and Lisa A. Olson, of Justice, Civ. Div., Washington, D.C. (Jill M. Grant, Captain, U.S. Army, of counsel), for intervening defendant U.S.

MURRAY M. SCHWARTZ, Senior District Judge.

This suit was filed by plaintiff Karr against various State and Delaware Army National Guard ("DEARNG") officers (the "State defendants") asserting, among other things, violation of Karr's constitutional rights in connection with his involuntary separation from the Active Guard/Reserve ("AGR") program. On August 31, 1990, the court issued an opinion ("August 31 Opinion") resolving the parties' cross-motions for summary judgment. United States ex rel. Karr v. Castle, 746 F.Supp. 1231 (D.Del.1990). An order implementing the August 31 Opinion ("December 14 Order") and a related Memorandum Opinion were issued December 14, 1990. The court held in part that the separation procedures followed by certain of the State defendants pursuant to DEARNG regulations based upon National Guard Regulation ("NGR") 600-5, ¶ 6-5d were facially invalid because they failed to provide Karr with sufficient procedural due process, 746 F.Supp. at 1239-42, and ordered Karr reinstated. December 14 Order (Dkt. 69); Memorandum Opinion issued December 14, 1990 (Dkt. 68). On December 28, 1990, the State defendants filed a motion seeking reconsideration of portions of the August 31 Opinion and the December 14 Order. On December 26, 1991, the United States filed a motion to intervene as a party defendant in this case for the purpose of seeking reconsideration of that portion of the December 14 Order declaring the procedures set forth in NGR 600-5, ¶ 6-5d constitutionally inadequate.¹ Because the Local Rule 3.1.D. certificate accompanying the United States' motion to intervene indicated that plaintiff did not oppose intervention, the court granted the motion to intervene on January 3, 1991. On January 16, 1991, plaintiff, asserting that he in fact opposed the motion to intervene, filed a motion to reconsider the intervention. This Opinion addresses the plaintiff's motion for reconsideration of the United States' motion to intervene and the motions for reconsideration of the merits of portions of the August 31 Opinion and December 14 Order filed by the United States and the State defendants. The court will first address plaintiffs' motion to reconsider the intervention of the United States as a party defendant.

Although not provided explicitly by the Federal Rules of Civil Procedure, the motion for reconsideration is not uncommon in federal practice. Above the Belt, Inc. v. Mel Bohannan Roofing, Inc., 99 F.R.D. 99, 101 (E.D.Va.1983). In this District, a motion for reargument or reconsideration is made pursuant to Local Rule of Civil Procedure 3.3. The procedural mechanism afforded by Local Rule 3.3 attempts to balance the interest in finality of judicial decisions with the recognition that courts sometimes err. Brambles U.S.A., Inc. v. Blocker, 735 F.Supp. 1239, 1241 (D.Del. 1990). The motion ought to be granted only sparingly; however, it should be granted in circumstances where the court has patently misunderstood a party or made an error not of reasoning but of apprehension. Id. at 1241; Above the Belt, Inc., 99 F.R.D. at 101.

In this instance, a misunderstanding clearly occurred as to whether plaintiff opposed the United States' motion to intervene. Although Local Rule 3.1 allowed plaintiff ten days to respond to the motion to intervene, the court granted the motion within that time period in reliance upon the Local Rule 3.1.D. certificate. While the parties disagree as to the substance of their communications concerning the motion to intervene, the fact remains that, regardless of fault, the court granted the motion on the assumption that it was unopposed and without benefit of plaintiff's position on the matter. This sort of misunderstanding is the type of situation in which the court should reconsider its prior order. Having agreed to reconsider the United States' motion to intervene, the court will deny the motion to intervene as of right pursuant to Fed.R.Civ.P. 24(a)(2) and grant permissive intervention under Rule 24(b).

Federal Rule of Civil Procedure 24(a)(2) permits intervention of right so long as (i) there is a timely application; (ii) the putative intervenor claims an interest relating to the transaction at issue; (iii) the putative intervenor is so situated that disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (iv) the putative intervenor's interest is not adequately represented by the parties. Deutschman v. Beneficial Corp., 132 F.R.D. 359, 380 (D.Del.1990). The timeliness of a motion to intervene should be determined from all of the circumstances of the case. In re Fine Paper Antitrust Lit., 695 F.2d 494, 500 (3d Cir.1982). Specifically, the court should consider three factors: "(1) How far the proceedings have gone when the movant seeks to intervene, (2) the prejudice which resultant delay might cause to other parties, and (3) the reason for the delay." Id. at 500 (quoting Pennsylvania v. Rizzo, 530 F.2d 501, 506 (3d Cir.), cert. denied, 426 U.S. 921, 96 S.Ct. 2628, 49 L.Ed.2d 375 (1976)). In the case at bar, the United States did not file its motion to intervene until after the court had granted summary judgment in favor of the plaintiff. Although nominally a plaintiff throughout the litigation, the United States had previously entered a notice declining to appear. Dkt. 20. The notice requested service of all pleadings and reserved the right to intervene "for good cause shown."

The United States contends its motion to intervene is timely because it was unaware prior to the entry of the December 14 Order that the constitutionality of NGR 600-5, ¶ 6-5d was at issue. The United States asserts correctly that the complaint does not raise the facial invalidity of the DEARNG separation procedures or NGR 600-5; this does not mean, however, that the United States was unaware that the constitutionality of portions of NGR 600-5 was at issue prior to December 14, 1990. The August 31 Opinion specifically found the regulation constitutionally infirm. The court's files indicate that a copy of the August 31 Opinion was sent to the Assistant United States Attorney. Consequently, there was nearly four months' delay between the time the United States was put on notice that the facial validity of NGR 600-5, ¶ 6-5d was at issue and the motion to intervene. This delay, however, was not prejudicial. The United States could not move for the court to reconsider the August 31 Opinion until the order implementing the opinion issued. This did not occur until December 14. The United States' motions to intervene and for reconsideration were filed shortly thereafter. Consequently, the court finds the motion to intervene was timely.

The interest asserted by the United States in the litigation at bar is its interest in defending the constitutionality of NGR 600-5, a regulation promulgated by the National Guard Bureau, a joint bureau of the United States Departments of the Army and the Air Force. The United States asserts this interest will as a practical matter be impaired by prosecution of this lawsuit because of the potential stare decisis effect of the August 31 Opinion on future challenges to the same regulation. Plaintiff contends the asserted interest of the United States is illusory. Plaintiff correctly asserts that the court held in the August 31 Opinion that his separation was governed by regulations promulgated by DEARNG and thus governed by state law. See 746 F.Supp. at 1237-38. Plaintiff goes too far, however, in contending that this fact means the facial constitutionality of NGR 600-5, ¶ 6-5d itself is not at issue. For purposes of plaintiff's separation from Active Guard/Reserve status, the regulations adopted by DEARNG are based upon and virtually indistinguishable from NGR 600-5, ¶ 6-5d. Consequently, any pronouncement by the court regarding the facial validity of the DEARNG separation procedures followed by the State defendants implicates the facial validity of the federal regulation. Further, the United States need not be bound by the August 31 Opinion to have its asserted interest impaired. Any practical impairment, including the adverse impact of stare decisis, may be sufficient to allow the United States to intervene. Steinberg v. Shearson Hayden Stone, Inc., 598 F.Supp. 273, 280 (D.Del.1984); 7C C. Wright & A. Miller, Federal Practice and Procedure § 1908 at 302.

The United States' motion to intervene fails to satisfy the fourth requirement of Rule 24(a)(2), that is, the requirement that the putative intervenor's interest is not adequately represented by the existing parties. Plaintiff asserts that the interest of the United States is adequately represented by counsel for the State defendants. With respect to this...