Lelsz v. Kavanagh

• Decision Date: 13 July 1983
• Docket Number: No. 82-2164,82-2164
• Citation: 710 F.2d 1040
• Parties: John LELSZ, et al., Plaintiffs-Appellees, v. John T. KAVANAGH, et al., Defendants-Appellees, v. THE PARENT ASSOCIATION FOR the RETARDED OF TEXAS, et al., Movants-Appellants.
• Court: U.S. Court of Appeals — Fifth Circuit

Page 1040

710 F.2d 1040

John LELSZ, et al., Plaintiffs-Appellees, v. John T. KAVANAGH, et al., Defendants-Appellees, v. THE PARENT ASSOCIATION FOR the RETARDED OF TEXAS, et al.,

Movants-Appellants.

No. 82-2164.

United States Court of Appeals Fifth Circuit.

July 13, 1983.

B.F. Campbell, Jr., Dallas, Tex., H. Bartow Farr, II, Joel I. Klein, Washington, D.C., for movants-appellants.

Brenda J. Garrett, Dallas, Tex., David Ferleger, Philadelphia, Pa., Vicki L. Johnson, Dallas, Tex., for plaintiffs-appellees.

Martha Allan, Asst. Atty. Gen., Austin, Tex., for defendants-appellees.

Appeal from the United States District Court for the Eastern District of Texas.

Before GEE, REAVLEY and HIGGINBOTHAM, Circuit Judges.

PATRICK E. HIGGINBOTHAM, Circuit Judge:

The Parent Association for the Retarded of Texas and two residents of Texas institutions for the mentally retarded appeal from the denial of their motion to intervene of right in a class action brought by other residents of those institutions against state officials. Because we find that the district court, 98 F.R.D. 11, did not abuse its discretion in holding the proposed intervention untimely, we affirm the order denying intervention and dismiss the appeal.

On November 27, 1974, several residents at Texas schools for the mentally retarded filed a class action against Texas officials, alleging that conditions at those schools violated their constitutional and statutory rights. In their complaint, they asserted:

By this proceeding Plaintiffs seek to vindicate, for themselves and for all members of the class they represent, their right to habilitation, the right to humane and decent living conditions, the right to procedural due process and fairness of admission, the right to an equal and adequate opportunity to realize their developmental capacities, the right to fair procedures in the determination of habilitative settings appropriate to their needs, and the right to habilitation in the least restrictive environment possible.

More specifically, the complaint asked that "Defendants be ordered ... to provide Plaintiffs with community based state-operated facilities for the mentally retarded which will so provide for the treatment of Plaintiffs in the least restrictive environment ..." Plaintiffs sought a class encompassing all residents at the institutions. They amended their complaint on May 15, 1975, to include additional named plaintiffs and defendants.

On March 5, 1976, six residents of the institutions and members of the putative class moved to intervene in order to argue that they had "no Constitutional right to habilitative care, much less habilitative care in the least restrictive setting ..." "[I]f such a right exists," the would-be intervenors added, "... the care provided by the State meets the Constitutionally compelled minimal standards." These residents also moved for an order that the suit not be maintained as a class action or, alternatively, that they be made class representatives.

Three years later, while the motion for leave to intervene was still pending, plaintiffs amended their complaint once again. In the preamble to this second amended complaint, plaintiffs reiterated that they "seek to enforce for themselves and all others similarly situated, the right to be free from state-imposed segregation, the right to receive treatment and habilitative services in the least restrictive environment and in the least restrictive manner, the right to a normalized living environment, the right to humane and decent living conditions, [and] the right to an equal and adequate opportunity to realize their developmental capacities ..." The lawsuit at this point had crystallized into a challenge to the conditions and operation of three state schools--Austin, Denton, and Fort Worth. Plaintiffs alleged that all residents of those institutions "could be discharged if appropriate alternative living arrangements with access to appropriate back up services were provided."

On July 9, 1981, the district court entered an order denying the motion to intervene. In its written statement of reasons, it indicated that the interests of the proposed intervenors were adequately represented by the defendants. See Fed.R.Civ.P. 24(a)(2). The district court invited the proposed intervenors' participation as amici curiae. An appeal from the district court's order was lodged, but was withdrawn on October 20, 1981.

After a hearing, the district court on August 5, 1981, certified a class consisting of all persons

(a) who are, or in the future are, residents of the Austin State School, Denton State School, or Fort Worth State School; (b) who have been residents of these three state schools since November 27, 1974 [the date of the filing of the original complaint]; or (c) who are, or in the future are, listed on the defendants' Registry for State School Placement.

The named plaintiffs were certified as class representatives.

On February 10, 1982, a motion to intervene was filed by Steven Ray Simms and Freda Snyder, two class members residing in the state schools, and by the Parent Association for the Retarded of Texas, an association of parents, relatives, and guardians of residents in the state schools. The proposed intervenors sought to strike what they term a "middle ground" between the positions of the plaintiffs and the Texas officials. As they explained in their motion:

Intervenors ... bring this complaint to require that defendants bring the Austin, Denton and Fort Worth State Schools into compliance with governing constitutional standards. Intervenors oppose, however, efforts to close the schools and to force transfer of all school residents into untested community facilities.

None of the three parties to this attempt at intervention were parties to the earlier attempt. Nonetheless, PART concededly funded the earlier attempt, and five of the six would-be intervenors belonged to PART. On April 2, 1982, the district court denied the second motion to intervene in a summary order without a hearing, and this appeal followed.

Because the order denying intervention did not specify the reasons for denial, we ordered a limited remand for this purpose. The district court responded with a twenty-four-page opinion that outlined two reasons for denying the motion--first, that the proposed intervenors' interests were adequately represented; and second, that the application was untimely. We now consider the proposed intervenors' appeal illuminated by the district court's statement of reasons.

Fed.R.Civ.P. 24(a)(2) provides:

Upon a timely application anyone shall be permitted to intervene in an action ... (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

The Supreme Court has outlined general principles to be applied in determining whether an application is timely:

[T]he court where the action is pending must first be satisfied as to timeliness. Although the point to which the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is to be determined from all the circumstances. And it is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court's ruling will not be disturbed on review.

NAACP v. New York, 413 U.S. 345, 365-66, 93 S.Ct. 2591, 2602-03, 37 L.Ed.2d 648 (1973). In Stallworth v. Monsanto Co., 558 F.2d 257 (5th Cir.1977), we distilled four factors to be considered in passing on the timeliness of a petition for leave to intervene:

Factor 1. The length of time during which the would-be intervenor actually knew or reasonably should have known of his interest in the case before he petitioned for leave to intervene....

Factor 2. The extent of the prejudice that the existing parties to the litigation may suffer as a result of the would-be intervenor's failure to apply for intervention as soon as he actually knew or reasonably should have known of his interest in the case....

Factor 3. The extent of the prejudice that the would-be intervenor may suffer if his petition for leave to intervene is denied....

Factor 4. The existence of unusual circumstances militating either for or against a determination that the application is timely...

Id. at 264-66.

We will review the denial of intervention here under the "abuse of discretion" standard and in light of these factors keeping in mind that Stallworth is not an algorithm, but a framework for analysis. As is often the case with such laundry lists, their precision is more apparent than real: one or more of the factors, as here, frequently is virtually open-ended.

We note at the outset that the proposed intervenors are class members. This does not mean that they may not intervene: we have recently examined the applicability of Fed.R.Civ.P. 24(a) to class actions and concluded that "intervention of right under Rule 24(a) and class action certification under Rule 23 are two separate and distinct theories." Woolen v. Surtran Taxicabs, Inc., 684 F.2d 324, 331 (5th Cir.1982). "[I]t is clear," we commented, "that the [Advisory] Committee contemplated that one who was already a class member could intervene in a lawsuit." Id. at 332. Yet the overlapping character of the inquiries into adequacy of representation suggests that when intervention of right is appropriate, class certification may also be called into question. Indeed, the proposed intervenors asserted at oral argument that if intervention were granted, they would move to decertify the class.

The first Stallworth factor asks about the length of time during which the would-be intervenor knew or should have known of his interest in the case. Actual or constructive knowledge of...