United States District Court, N.D. California
ORDER GRANTING UNOPPOSED MOTION TO INTERVENE
WILLIAM ALSUP, UNITED STATES DISTRICT JUDGE
action under the Freedom of Information Act, third party
Sikorsky Aircraft Corporation moves to intervene. Plaintiff
and defendant do not oppose. For the reasons that follow, the
motion to intervene is Granted.
an action by plaintiff American Small Business League against
the Department of Defense. On August 9, 2013, plaintiff filed
a FOIA request seeking “[t]he most recent comprehensive
subcontracting plan submitted by Sikorsky Aircraft
Corporation for participation in the [DOD's]
Comprehensive Subcontracting Plan Test Program” (Dkt.
No. 1 ¶ 5).
denied the FOIA request on September 3. Plaintiff then
initiated this action. An order required the DOD to produce
Sikorsky's subcontracting plan to plaintiff by December
3, 2014 (Dkt. No. 28 at 7). A subsequent order then granted
Sikorsky's motion to intervene for the purpose of
appealing the disclosure order (Dkt. No. 48). Our court of
appeals reversed the disclosure order. Am. Small Bus.
League v. Dep't of Defense, No. 15-15120, 2017 WL
65399 (9th Cir. Jan. 6, 2017).
now seeks to intervene for all purposes under both FRCP 24(a)
and FRCP 24(b). This order addresses each in turn.
intervene as a matter of right under FRCP 24(a), an applicant
must establish that (1) intervention is timely; (2) it has a
“significant protectable interest” relating to
the subject of the action; (3) the action's disposition
“may, as a practical matter, impair or impede [its]
ability to protect its interest; and (4) the existing parties
may not adequately represent [its] interests.”
Citizens for Balanced Use v. Mont. Wilderness
Ass'n, 647 F.3d 893, 897 (9th Cir. 2011).
main issue is whether the DOD can adequately represent
Sikorsky's interests. To determine the extent to which
representation is adequate, courts consider “(1)
whether the interest of a present party is such that it will
undoubtedly make all of a proposed intervenor's
arguments, (2) whether the present party is capable and
willing to make such arguments, and (3) whether a proposed
intervenor would offer any necessary elements to the
proceeding that other parties would neglect.”
Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir.
2003). The burden to show inadequate representation is
typically “minimal, ” however, if the applicant
and the existing party have the “same ultimate
objective, ” then representation is presumed to be
adequate. Sikorsky and the DOD have the same ultimate
objective - to prevent disclosure of Sikorsky's
subcontracting plan (see Dkt. No. 75 at 3).
applicant must make a “compelling showing” to
rebut the presumption. Arakaki, 324 F.3d at 1086.
Sikorsky fails to rebut this presumption. First, it
is not enough that Sikorsky may or may not make the
“same arguments” or use the “same
evidence” as the DOD. Sikorsky does not explain how
these potential variations in litigation strategy are
significant enough to justify intervention. See Perry v.
Proposition 8 Official Proponents, 587 F.3d 947, 954
(9th Cir. 2009) (mere variations in litigation strategy are
insufficient to support intervention as a matter of right).
Second, the fact that Sikorsky “can best
explain” the impact of the subcontracting plan's
disclosure does not mean that the DOD would neglect to
address this element. Rather, Sikorksy's expertise is
just a potential improvement. See Blake v. Pallan,
554 F.2d 947, 955 (9th Cir. 1977) (benefits of factual
knowledge can be obtained by an amicus brief “rather
than bought with the price of intervention”).
applicant requesting permissive intervention under FRCP 24(b)
must show (1) that there are “independent grounds for
jurisdiction; (2) the motion is timely; and (3) the
applicant's claim or defense, and the main action, have a
question of law or a question of fact in common.”
Nw. Forest Res. Council v. Glickman, 82 F.3d 825,
839 (9th Cir. 1996).
the independent jurisdictional requirement does not apply
here because Sikorsky is requesting to intervene in a
federal-question case and is not raising new claims. See
Freedom from Religion Found., Inc. v. Geithner, 644 F.3d
836, 844 (9th Cir. 2011) (proposed intervenors in
federal-question cases do not have to establish independent
jurisdictional grounds when not raising new claims).
Second, timeliness is not an issue here because this
action only recently resumed progress following appeal of the
disclosure order and Sikorsky's intervention would not
prejudice the other parties. See United States v. Alisal
Water Corp., 370 F.3d 915, 921-23 (9th Cir. 2004).
Indeed, both sides have filed statements of non-opposition to
Sikorsky's motion (Dkt. Nos. 76, 77). Third,
Sikorsky will argue the subcontracting plan is exempt from
disclosure, which goes to the heart of this action (Dkt. No.
75-1 ¶ 13).
foregoing reasons, the motion to ...