Intervention Imperatives

Originally published by David Coale.

Richardson v. Flores reviewed the standards for intervention into an ongoing appeal, noting: “There is no appellate rule allowing intervention generally. Instead, the Federal Rules of Appellate Procedure contemplate intervention only in
proceedings to review agency action. Fed. R. App. P. 15(d). But despite the lack of an on-point rule, we have allowed intervention in cases outside the scope of Rule 15(d). . . .  Perhaps because there is no rule explicitly allowing intervention on appeal, the caselaw explicating the standards for such motions is scarce. In Bursey, when granting a similar motion to intervene, we said ‘a court of appeals may, but only in an exceptional case for imperative reasons, permit intervention where none was sought in the district court.’”  (footnote and citations omitted, emphasis in original). The Court also noted: “Motions to intervene on appeal are different from motions to intervene for purposes of appeal. Motions to intervene for purposes of appeal are used where ‘the existing parties have decided not to pursue [an appeal]’ and are filed in district courts in the first instance under the Federal Rules of Civil Procedure.” (citation omitted).

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