AuthorStanford, Annie T.


On May 15, 2018, The Honorable Andrew S. Hanen for the Southern District of Texas ruled that a group of twenty-two Dreamers (1) could intervene in a lawsuit brought by the State of Texas seeking an end to the 2012 DACA program implemented by former President Barack Obama. (2) This decision is one of the most recent in a series of court decisions granting groups of both documented and undocumented immigrants original litigant status in cases challenging the validity of immigration policies. (3)

Immigration intervention motions represent a novel manipulation of a Federal Rule of Civil Procedure (FRCP) that was originally intended to cover absentee claims in real property disputes. (4) FRCP 24 (Rule 24) governs third-party intervention into a lawsuit and permits parties to participate in a suit as if they were original litigants. (5) Given that Rule 24 treats third parties as original litigants, it was originally one of the more restrictive FRCPs. (6) Recent court decisions, however, have lowered the Rule 24 burden to intervene. (7) Although Rule 24 provides a mechanism for ideological social justice movements and political speech to be heard in court, (8) the ease with which third parties can now intervene has caused Rule 24 to clash with the long-standing doctrines of standing, class actions, jurisdiction, and res judicata. (9) Such politico-ideological advocacy was previously reserved for amicus curiae (10) briefs, in which the writing amicus or "friend of the court" (11) is not treated as an original litigant, has no legally-recognized stake in the case, and does not risk interfering with other doctrines. (12)

In addition to its recently lowered burden, Rule 24 intervention is especially important in the wake of the Supreme Court's recent decision in Town of Chester v. Laroe Estates, Inc. (13) In Town of Chester, the Court held that an intervenor does not need independent Article III standing if she seeks the same relief as an original litigant. (14) In social justice cases, (15) such as immigration actions, that relief is generally simple: upholding or overturning the validity of certain state or federal laws. (16) Thus, because a social justice intervenor is more likely to seek the same relief as an original litigant than in other categories of cases, (17) the Court's removal of an independent standing requirement increased even more the likelihood of mass intervention by intervenors in social justice cases.

This Note argues that courts have recently construed the scope of Rule 24's "significantly protectable interest" and "adequacy of representation" burden (18) too broadly. Part I looks at the original purpose of Rule 24--to cover absentee claims in real property disputes--and its subsequent textually and judicially defined burden. Part II examines the reasons why Rule 24 is an attractive option for litigants. Part III discusses courts' lowering of the burden in the social justice context. Part IV focuses on the increasing politicization and debate-style uses of Rule 24 through the lens of immigration actions. Part V analyzes the negative implications of the lowered Rule 24 burden and the Court's decision in Town of Chester on other carefully crafted doctrines: standing, class actions, jurisdiction, and res judicata.

Part V concludes by arguing that courts should tighten the Rule 24 burden and reserve such politico-ideological advocacy, particularly when the relief sought is the same as that of the original parties, for its traditional forum: amicus briefs. If courts do not tighten the burden, they will face endless contentious public interest intervention motions that crowd the stage of the original litigation. (19) With the lowered Rule 24 burden, litigants have sought intervention on massive scales. (20) Massive scale intervention is demonstrated by both the quantity of motions to intervene that are filed generally and within a given litigation, as well as by the quantity of intervenors seeking intervention under any one motion. (21) Both the relief intervenors seek as well as court decisions themselves have become too politico-ideological despite the efficiency afforded by having all interested voices present. (22) Intervention at this scale is no longer practical. (23)


    Rule 24, adopted in 1938, was written to replace Former Equity Rule 37 of the Federal Equity Rules for claims in equity and varying state statutes that provided rights to intervene in claims based in law. (24) Former Equity Rule 37, however, expressly limited the role of intervenors, stating that any intervention "shall be in subordination to, and in recognition of, the propriety of the main proceeding." (25) This subordinate status was not carried into Rule 24, even in its earliest form in 1938. (26) With the drafting of Rule 24, "the intervenor is treated as if [she] were an original party and has equal standing.... [T]he intervenor is entitled to litigate fully on the merits once intervention has been granted." (27) This "original litigant" status is the key distinction between a Rule 24 intervenor and an amicus. (28)

    1. Intended Use

      The original purpose of Rule 24 was to consolidate Federal Equity Rule 37 and competing state statutes supplying a legal right to intervene. (29) At the time Rule 24 was passed, the Advisory Committee textually distinguished Rule 24's divergent equitable and legal origins. (30)

      As originally written, the equity portion of Rule 24, section 24(a)(3), solely addressed real property rights. (31) This section of the rule was considered an absolute right (32) because of the likelihood of a third person's rights being "seriously jeopardized" should the court award a piece of real property to a litigant without allowing the third party to speak of her rights to the same property. (33) This is because awarding title to property to one party necessarily binds others who claim title to the same property. (34) These policy concerns were driven by the doctrine of res judicata, and courts recognized value in "preventing] their processes from being used to the prejudice of the rights of interested third persons." (35)

      The other portion of Rule 24 dealing with one's legal rights or claims, section 24(a)(2), focused originally on adequacy of representation by the current parties to the litigation. This was a discretionary right. (36) To intervene under the original section 24(a)(2), a party needed to show both: (1) inadequate representation; and (2) that if denied intervention, she would otherwise be bound by any judgment in the action. (37) The textual requirement to demonstrate that one would be bound by the judgment if denied intervention echoed that of the real property and equity-driven section 24(a)(3) and reflected the same policy concerns about res judicata. (38) Although section 24(a)(2) does not deal with equity or real property, (39) the same idea carried through. (40)

      Additionally, although the legal right targeted by section 24(a)(2) is not per se a real property right, the legal right nonetheless originates from real property rights. As originally intended, the Advisory Committee sought to cover intervenors with a property-like relationship to the litigation, (41) such as "unsecured creditors, stockholders, or bondholders, and ... taxpayers." (42) Inadequate representation was determined based on collusion between the alleged representative of the third party seeking intervention (the "Proposed Intervenor") and the opposing party, representation of an interest adverse to the Proposed Intervenor, or, alternatively, breach of a duty. (43)

    2. 1966 Advisory Committee Amendment

      The 1966 Advisory Committee amendment (1966 Amendment) eliminated the textual distinction between legal and equitable claims.44 First, the Advisory Committee removed section 24(a)(3), which dealt only with real property. (45) Section 24(a)(2), which was originally intended to cover legal rights between parties such as creditors and stockholders, was merged with 24(a)(3) into one section, which is today section 24(a)(2). (46) Rule 24 currently states that a Proposed Intervenor must simply claim "an interest" (47) in the property or transaction at issue in the litigation.

      Second, the Advisory Committee removed one of the two requirements to intervene from the prior sections 24(a)(2) and (a)(3). (48) Under the 1966 Amendment, Proposed Intervenors must only show that representation in the litigation is inadequate, not that they will be bound by any judgment in the action. (49) Third, and most importantly for this Note, the Advisory Committee altered the scope of section 24(a)(2), explicitly stating that:

      The representation whose adequacy comes into question under the amended rule is not confined to formal representation like that provided by a trustee for his beneficiary.... A party to an action may provide practical representation to the absentee seeking intervention although no such formal relationship exists between them, and the adequacy of this practical representation will then have to be weighed. (50) This elimination of a textual equitable and legal distinction, and merger of both roots into section 24(a)(2), fundamentally altered analyses of Rule 24 and Rule 24 case law. Indeed, the drafter of the 1966 Amendment, Professor Benjamin Kaplan, noted that the purpose of the amendment was to "drive beyond the narrow notion of an interest in specific property." (51)

      Cascade Natural Gas Corp. v. El Paso Natural Gas Co. (Cascade), (52) decided one year after the 1966 Amendment, marked a shift in Rule 24 interpretation. (53) In Cascade, the Proposed Intervenors were gas companies that claimed an injury due to an illegal merger and monopoly by their competitors. (54) The Court first noted that, at equity, "those 'adversely affected' by a disposition of property would usually be those who have [a real] interest in the property." (55) The Proposed Intervenors had no...

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