NOTES TO RULE 24
HISTORY: (Amended Mar. 19, 1948; Oct. 20, 1949; July 1, 1963; July 1, 1966; Aug. 1, 1987; Dec. 1, 1991)
Notes of Advisory Committee on Rules.
The right to intervene given by the following and similar statutes is preserved, but the procedure for its assertion is governed by this rule:
U.S.C., Title 28, former: § 45a (Special attorneys; participation by Interstate Commerce Commission; intervention) (in certain cases under interstate commerce laws) § 48 (Suits to be against United States; intervention by United States § 401 (Intervention by United States; constitutionality of Federal statute)
U.S.C., Title 40: § 276a-2 (b) (Bonds of contractors for public buildings or works; rights of persons furnishing labor and materials.)
Compare with the last sentence of former Equity Rule 37 (Parties Generally--Intervention). This rule amplifies and restates the present federal practice at law and in equity. For the practice in admiralty see Admiralty Rules 34 (How Third Party May Intervene) and 42 (Claims Against Proceeds in Registry). See generally Moore and Levi, Federal Intervention: The Right to Intervene and Reorganization (1936), 45 Yale LJ 565. Under the codes two types of intervention are provided, one for the recovery of specific real or personal property (2 Ohio Gen. Code Ann (Page, 1926) § 11263; Wyo Rev Stat Ann (Courtright, 1931) § 89-522), and the other allowing intervention generally when the applicant has an interest in the matter in litigation (1 Colo Stat Ann (1935) Code Civ Proc § 22; La Code Pract (Dart, 1932) Arts 389--394; Utah Rev Stat Ann (1933) § 104-3-24). The English intervention practice is based upon various rules and decisions and falls into the two categories of absolute right and discretionary right. For the absolute right see English Rules Under the Judicature Act (The Annual Practice, 1937) O. 12, r 24 (admiralty), r 25 (land), r 23 (probate); O. 57, r 12 (execution); J. A. (1925) §§ 181, 182, 183(2) (divorce); In re Metropolitan Amalgamated Estates, Ltd. (1912) 2 Ch 497 (receivership); Wilson v Church, 9 Ch D 552 (1878) (representative action). For the discretionary right see O. 16, r 11 (nonjoinder) and Re Fowler, 142 L. T. Jo. 94 (Ch 1916), Vavasseur v Krupp, 9 Ch D 351 (1878) (persons out of the jurisdiction).
Notes of Advisory Committee on 1946 and 1948 amendments to Rules.
Note. Subdivision (a).
The addition to subdivision (a)(3) covers the situation where property may be in the actual custody of some other officer or agency--such as the Secretary of the Treasury--but the control and disposition of the property is lodged in the court wherein the action is pending.
Subdivision (b).
The addition in subdivision (b) permits the intervention of governmental officers or agencies in proper cases and thus avoids exclusionary constructions of the rule. For an example of the latter, see Matter of Bender Body Co., Ref. Ohio 1941, 47 F Supp 224, aff'd as moot, ND Ohio 1942, 47 F Supp 224, 234, holding that the Administrator of the Office of Price Administration, then acting under the authority of an Executive Order of the President, could not intervene in a bankruptcy proceeding to protest the sale of assets above ceiling prices. Compare, however, Securities and Exchange Commission v United States Realty & Improvement Co. 1940, 310 US 434, 84 L Ed 1293, 60 S Ct 1044, where permissive intervention of the Commission to protect the public interest in an arrangement proceeding under Chapter XI of the Bankruptcy Act was upheld. See also dissenting opinion in Securities and Exchange Commission v Long Island Lighting Co., CCA 2d, 1945, 148 F2d 252, judgment vacated as moot and case remanded with direction to dismiss complaint, 1945, 325 US 833, 89 L Ed 1961, 65 S Ct 1085. For discussion see Commentary, Nature of Permissive Intervention Under Rule 24b, 1940, 3 Fed Rules Serv 704; Berger, Intervention by Public Agencies in Private Litigation in the Federal Courts, 1940, 50 Yale L. J. 65.
Regarding the construction of subdivision (b)(2), see Allen Calculators, Inc. v National Cash Register Co., 1944, 322 US 137, 88 L Ed 1188, 64 S Ct 905.
Notes of Advisory Committee on 1963 amendments to Rules.
This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee's Note to that amendment.
Notes of Advisory Committee on 1966 amendments to Rules.
Subdivision (a).
In attempting to overcome certain difficulties which have arisen in the application of present Rule 24(a)(2) and (3), this amendment draws upon the revision of the related Rules 19 (joinder of persons needed for just adjudication) and 23 (class actions), and the reasoning underlying that revision. Rule 24(a)(3) as amended in 1948 provided for intervention of right where the applicant established that he would be adversely affected by the distribution or disposition of property involved in an action to which he had not been made a party. Significantly, some decided cases virtually disregarded the language of this provision. Thus Professor Moore states: "The concept of a fund has been applied so loosely that it is possible for a court to find a fund in almost any in personam action." 4 Moore's Federal Practice, par 24.09 [3], at 55 (2d ed 1962), and see, e.g., Formulabs, Inc. v Hartley Pen Co. 275 F2d 52 (9th Cir 1960). This development was quite natural, for Rule 24(a)(3) was unduly restricted. If an absentee would be substantially affected in a practical sense by the determination made in an action, he should, as a general rule, be entitled to intervene, and his right to do so should not depend on whether there is a fund to be distributed or otherwise disposed of. Intervention of right is here seen to be a kind of counterpart to Rule 19(a)(2)(i) on joinder of persons needed for a just adjudication: where, upon motion of a party in an action, an absentee should be joined so that he may protect his interest which as a practical matter may be substantially impaired by the disposition of the action, he ought to have a right to intervene in the action on his own motion. See Louisell & Hazard, Pleading and Procedure: State and Federal 749-50 (1962).
The general purpose of original Rule 24(a)(2) was to entitle an absentee, purportedly represented by a party, to intervene in the action if he could establish with fair probability that the representation was inadequate. Thus, where an action is being prosecuted or defended by a trustee, a beneficiary of the trust should have a right to intervene if he can show that the trustee's representation of his interest probably is inadequate; similarly a member of a class should have the right to intervene in a class action if he can show the inadequacy of the representation of his interest by the representative parties before the court.
Original Rule 24(a)(2), however, made it a condition of intervention that "the applicant is or may be bound by a judgment in the action," and this created difficulties with intervention in class actions. If the "bound" language was read literally in the sense of res judicata, it could defeat intervention in some meritorious cases. A member of a class to whom a judgment in a class action extended by its terms (see Rule 23(c)(3), as amended) might be entitled to show in a later action, when the judgment in the class action was claimed to operate as res judicata against him, that the "representative" in the class action had not in fact adequately represented him. If he could make this showing, the class-action judgment might be held not to bind him. See Hansberry v Lee, 311 US 32, 85 L Ed 22, 61 S Ct 115, 132 ALR 741 (1940). If a class member sought to intervene in the class action proper, while it was still pending, on grounds of inadequacy of representation, he could be met with the argument: if the representation was in fact inadequate, he would not be "bound" by the judgment when it was subsequently asserted against him as res judicata, hence he was not entitled to intervene; if the representation was in fact adequate, there was no occasion or ground for intervention. See Sam Fox Publishing. Co. v United States, 366 US 683, 6 L Ed 2d 604, 81 S Ct 1309 (1961); cf. Sutphen Estates, Inc. v United States, 342 US 19, 96 L Ed 19, 72 S Ct 14 (1951). This reasoning might be linquistically justified by original Rule 24 (a)(2); but it could lead to poor results. Compare the discussion in International M. & I. Corp. v Von Clemm, 301 F2d 857 (2d Cir 1962); Atlantic Refining Co. v Standard Oil Co. 304 F2d 387 (DC Cir 1962). A class member who claims that his "representative" does not adequately represent him, and is able to establish that proposition with
The amendment provides that an applicant is entitled to intervene in an action when his position is comparable to that of a person under Rule 19(a)(2)(i), as amended, unless his interest is already adequately represented in the action by existing parties. The Rule 19(a)(2)(i) criterion imports practical considerations, and the deletion of the "bound" language similarly frees the rule from undue preoccupation with strict considerations of res judicata.
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 or a representative party in a class action for a member of the class. 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. See International M. & I. Corp. v Von Clemm, and Atlantic Refining Co. v Standard Oil Co., both supra; Wolpe v Poretsky, 144 F2d 505 (DC Cir 1944), cert den 323 US 777, 85 L Ed 22, 61 S Ct 115, 132 ALR 741 (1944); cf. Ford Motor Co. v Bisanz Bros., 249 F2d 22 (8th Cir 1957); and generally, Annot, 84 ALR2d 1412 (1962).
An intervention of right under the amended rule may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings.
Subdivision (c).
This amendment conforms to the amendment of Rule 5(a). See the Advisory Committee's Note to that amendment.
Notes of Advisory Committee on 1987 amendments to Rules.
The amendments are technical. No substantive change is intended.
Notes of Advisory Committee on December 1991 Amendment of Rule.
Language is added to bring Rule 24(c) into conformity with the statute cited, resolving some confusion reflected in district court rules. As the text provides, counsel challenging the constitutionality of legislation in an action in which the appropriate government is not a party should call the attention of the court to its duty to notify the appropriate governmental officers. The statute imposes the burden of notification on the court, not the party making the constitutional challenge, partly in order to protect against any possible waiver of constitutional rights by parties inattentive to the need for notice. For this reason, the failure of a party to call the court's attention to the matter cannot be treated as a waiver.