United States v. Palermino
United States v. Palermino
Opinion of the Court
RULING ON MOTIONS TO INTERVENE [DOCS. # # 12, 18]
Plaintiff the United States of America (“USA”) brought this action against defendant officials of the Connecticut Department of Public Utility Control (“DPUC”) and various telecommunication carriers (collectively, “carriers”), seeking to enjoin the production by the carriers to the DPUC of information (if any) disclosed by the carriers to the USA. See Compl. [Doc. # 1].
This case arises, inter alia, as a result of an application filed by the American Civil Liberties Union of Connecticut (“ACLU-CT”) in May 2006 against certain telecommunications carriers before the DPUC seeking an investigation of allegations of DPC rule and regulation violations and/or violations of state and/or federal laws/regulations committed by such carriers through disclosure to the federal government of the Customer Propriety Network Information of all of then-customers, including called and calling numbers and the time and date of calls (“DPUC Action”). See id. ¶34. In August 2006, the ACLU-CT served interrogatories on the carriers involved in the DPUC Action seeking information about their privacy policies, disclosures to third parties since 2001, and information about specific disclosures in response to government requests. Id. ¶35; First Set of Interrog. [Doc. # 1, Ex. C]. Subsequently, the DPUC issued an order requiring the carrier defendants in that proceeding to respond to the ACLU-CT’s interrogatories, denying those defendants’ motions to strike the interrogatories. Compl. ¶36.
The USA now “seeks to prevent the disclosure of highly confidential and sensitive government information that the defendant officers of the [DPUC] have sought to obtain, and required the production of, from telecommunications carriers without proper authorization from the United States,” on the basis that “[c]ompliance with the order, issued by those officers, compelling responses to interrogatories would first place the carriers in a position of having to confirm or deny the existence of information that cannot be confirmed or denied without causing exceptionally grave harm to national security. And if particular carriers are indeed supplying foreign intelligence information to the Federal Government, compliance with the order would require disclosure of the details of that activity.” Id. ¶1.
The USA brought this action against officers of the DPUC and carriers only, and not against ACLU-CT or the Connecticut Office of Consumer Counsel (“OCC”), both of which groups now seek to intervene in this action. See ACLU-CT Mot. to Intervene [Doc. # 12]; OCC Mot. to Intervene [Doc. # 18]. The USA opposes these motions (and the defendant carriers join the opposition filed by the USA, see [Doc. # 23]), arguing that neither the ACLU-CT nor the OCC have a sufficient interest to warrant intervention and neither has rebutted the presumption of adequate representation by the DPUC defendants. See Gov’t Opp. [Doc. #24/25]. For the reasons that follow, the motions to intervene will be granted.
I. STANDARD
Rule 24(a) provides for intervention as of right upon a timely filed motion “(1) when a statute of the United States confers an unconditional right to intervene; or (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant’s ability to protect that interest, unless the applicant’s interest is adequately represented by existing parties.” Fed. R.Civ.P. 24(a). As stated by the Second Circuit, “[t]o intervene as of right, a movant must (1) timely file an application, (2) show an interest in the action, (3) demonstrate that the interest may be impaired by the disposition of the action, and (4) show that the interest is not protected adequately by the parties to the action.” Brennan v. N.Y. City Bd. of Educ., 260 F.3d 123, 128-29 (2d Cir.
“When considering a motion to intervene, the court ‘must accept as true the nonconclusory allegations of the motion.’ ” Bay Casino, LLC v. M/V Royal Empress, 199 F.R.D. 464, 466 (E.D.N.Y. 1999) (quoting Reich v. ABC/Yorkr-Estes Corp., 64 F.3d 316, 321 (7th Cir. 1995)). “A motion to intervene as a matter of right, moreover, should not be dismissed unless it appears to a certainty that the intervener is not entitled to relief under any set of facts which could be proved under the complaint. Each intervention case is highly fact specific and tends to resist comparison to prior cases.” Id. (internal quotations omitted).
II. DISCUSSION
A. Timeliness
The USA and the defendant carriers do not dispute the timeliness of the motions to intervene, and as they were filed within a month of the commencement of this action and at the time no responsive pleading or motion to dismiss had yet been filed and no other substantive action had been taken, the Court finds this factor satisfied.
B. Interest in Action
As noted above, in order for an interest for purposes of Rule 24 intervention to be “cognizable,” “it must be direct, substantial and legally protectable,” rather than “remote [or] contingent on the occurrence of a sequence of events before it becomes colorable,” Peoples Benefit Life Ins. Co., 271 F.3d at 415, although the party seeking to intervene need not have an independent cause of action.
Notwithstanding the USA’s claim that “[t]he dispute in this case as to whether the State Defendants have th[e] authority [to require the carrier defendants to disclose information that the USA has precluded from disclosure] is between — and solely between— the State Defendants and the United States,” Gov’t Opp. at 4,
C. Impairment of Interest
For the reasons described in the preceding paragraph, because a determination for the USA in this action will directly impact the DPUC proceeding and the interests the ACLU-CT and the OCC represent there, an impairment of interest if intervention is not granted has been shown.
D. Inadequate Protection/Representation
The USA claims that adequacy of representation by the DPUC defendants is assumed, that those defendants share the same objective as the ACLU-CT and the OCC, and that the presumption of adequacy has not been rebutted. Gov’t Opp. at 4-5 (citing United States v. Hooker Chems. & Plastics Corp., 749 F.2d 968, 984-85 (2d Cir. 1984); Butler, 250 F.3d at 179; Mrs. W. v. Tirozzi, 124 F.R.D. 42, 44 (D.Conn. 1989) (“[P]laintiff must overcome presumption of adequate representation that arises when an application has the same ultimate objective as the original parties.”)). Specifically, the USA argues that “the State [DPUC] Defendants — which have indicated that they will defend this lawsuit — have the same ‘ultimate objective’ as the ACLU-CT, i.e., a determination that the State Defendants do have the authority to order disclosure of the information ACLU-CT seeks in the administrative state proceedings. Indeed the United States was forced to bring this action precisely because the State Defendants believe they have that authority.” Id. at 5.
While the USA is correct that, as discussed above, as a general matter the Second Circuit “has demanded a more rigorous showing [than minimal] of inadequacy in cases where the putative intervenor and a named party have the same ultimate objective,” Butler, 250 F.3d at 179, and where “a group (or groups) with recognized interests wishes to intervene and defend an action of the government which the government itself is defending ... courts tend to assume, in the absence of evidence to the contrary, ‘that the government will adequately defend its actions, at least where its interests appear to be aligned with those of the proposed intervenor,’ ” Schaghticoke Tribal Nation v. Norton, 06cv81 (PCD), 2006 WL 1752384, at *5 (D. Conn. June 26, 2006) (citing Maine v. Dir., United States Fish & Wildlife Serv., 262 F.3d 13, 19 (1st Cir. 2001)), that presumption is not operative to bar intervention in this case. While the DPUC defendants will presumably vigorously defend their interests in this action, and thus the DPUC’s authority to compel the carriers to respond to the
Accordingly, the Court finds that the inter-venors have satisfied the fourth factor of potential inadequacy of representation.
III. CONCLUSION
For the foregoing reasons, both motions to intervene [Docs. # 12, 18] are GRANTED.
IT IS SO ORDERED.
. The Government further states: "the central issue in this case is whether the State [DPUC] Defendants have the authority to require the Carrier Defendants to disclose information that the Federal government has precluded from disclosure. Any claimed interest of ACLU-CT’s or
. See In re Sierra Club, 945 F.2d 776, 779 (4th Cir. 1991) (Sierra Club had an interest in "the transaction which [wa]s the subject of the action” where Sierra club was "a party to the administrative permitting proceedings where Regulation 61-99 fwa]s involved,” the suit in which Sierra Club sought to intervene arose "out of the permit proceedings and the complaint sought to enjoin the defendants from applying [Regulation 61-99] [and] as a practical matter, enjoining certain sections of Regulation 61-99 in the district court [would] impede Sierra Club's ability to protect its interest in the administrative proceeding”).
Reference
- Full Case Name
- United States v. Anthony J. PALERMINO
- Cited By
- 3 cases
- Status
- Published