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Fair Political Practices Commission, An Agency of the State of California v. United States Postal Service

April 26, 2012


The opinion of the court was delivered by: Garland E. Burrell, Jr. United States District Judge


Intervenor-Applicant William Eisen ("Eisen"), in propria person, seeks to intervene as a defendant as a matter of right under Federal Rule of Civil Procedure ("Rule") 24(a); and in the alternative, Eisen seeks permissive intervention under Rule 24(b). (Eisen's Appl. to Intervene ("Appl.") 1:22.) Plaintiff Fair Political Practices Commission ("FPPC") opposes the application. Defendant United States Postal Service ("USPS") filed a statement of non-opposition to the application.

I. Legal Standard

A. Intervention of Right

"Under Federal Rule 24(a), intervention of right [is] permitted when either federal statute confers the unconditional right to intervene in the action, or when the applicant claims an interest which may, as a practical matter, be impaired or impeded by disposition of the pending action, and that interest is not adequately represented by existing parties." Equal Emp't Opportunity Comm'n v. Giumarra Vineyards Corp., No. 1:09-CV-02255, 2010 WL 3220387, at *2 (E.D. Cal. Aug. 13, 2010). In the absence of a federal statute granting an unconditional right to intervene, [a]n applicant seeking intervention as of right must show that: (1) [he] has a "significant protectable interest" relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant's ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant's interest.

Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citation omitted). "While an applicant seeking to intervene has the burden to show that these four elements are met, the requirements are broadly interpreted in favor of intervention." Citizens for Balanced Use v. Mont. Wilderness Ass'n, 647 F.3d 893, 897 (9th Cir. 2011) (citation omitted). However, "[a]n applicant's failure to satisfy any one of the requirements is fatal to the application[; therefore, the court] need not reach the remaining elements if one of the elements is not satisfied." Perry v. Schwarzenegger, 630 F.3d 898, 903 (9th Cir. 2011) (internal quotation marks, alteration in original, and citation omitted).

In evaluating an application to intervene, "[c]courts are to take all well-pleaded, nonconclusory allegations in the [application] to intervene . . . [and] the proposed . . . answer in intervention . . . as true absent sham, frivolity or other objections." Sw. Cntr. for Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).

B. Permissive Intervention

"An applicant who seeks permissive intervention must prove that [he] meets three threshold requirements: (1) [he] shares a common question of law or fact with the main action; (2) [his] motion is timely; and (3) the court has an independent basis for jurisdiction over the applicant's claims." Donnelly, 159 F.3d at 412 (citation omitted). "Even if an applicant satisfies those threshold requirements, the district court has discretion to deny permissive intervention." Id. (citation omitted); see Kootenai Tribe of Idaho v. Veneman, 313 F.3d 1094, 1111 (9th Cir. 2002) (providing a non-exhaustive list of factors the district court should consider in exercising its discretion), abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630 F.3d 1173, 1178 (9th Cir. 2011).

II. Background

A. FPPC's Allegations

This case concerns a Freedom of Information Act ("FOIA") request FPPC submitted to USPS, seeking information concerning the number of pieces of mail Eisen sent through USPS using his bulk mailing permit on specific dates in 2008. (Compl. ¶¶ 1, 12 & 14.) FPPC alleges in its complaint that it is "an agency of the State of California . . . charged with investigating possible violations of the [California Political Reform Act of 1974 ('PRA'),]" which governs campaign activities in local elections. Id. ¶ 3. FPPC alleges it "received a sworn complaint . . . alleging [Eisen] violat[ed] . . . the mass mailing provisions of the [PRA] in connection with a local California campaign." Id. ¶ 8. FPPC alleges its "investigation revealed evidence that [Eisen] produced and sent two separate mailings opposing his recall in the November 2008 election . . . [in which he] falsely indicated that a taxpayers' association and regional political club were responsible for the mailers." Id. ¶ 10.

FPPC alleges that as part of its investigation, it "submitted a FOIA request to . . . USPS . . . [seeking information regarding] the number of pieces of mail related to [Eisen's] bulk mailing permit number that [USPS] delivered on or around the 9th, 10th, and 22nd of October in 2008." Id. ¶¶ 12 & 14. FPPC alleges USPS redacted "nearly all of the contents" of the postage statements it provided in response to FPPC's FOIA request, including the total number of pieces of mail sent under the bulk mailing permit. Id. ¶ 16. "Regarding the redactions, [USPS] cited FOIA disclosure exemptions pertaining to information of a commercial or financial nature that are privileged and confidential or would not be publicly disclosed under good business practices (FOIA Exemptions 3 and 4)." Id. (citing 5 U.S.C. § 552(b)(3) & (4)). FPPC seeks in its complaint an order declaring that USPS violated FOIA by improperly ...

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