817 F.3d 198
5th Cir.2016Background
- Sierra Club filed FOIA requests (Nov 2011 & Jan 2013) seeking documents Entergy submitted to EPA about three power plants; Entergy designated many documents as confidential business information (CBI) under FOIA Exemption 4.
- EPA issued final determinations finding none of the ~21,685 pages contained Entergy CBI but temporarily maintained ~18,000 pages as third‑party contract CBI; EPA planned administrative review to identify third parties and resolve third‑party CBI claims.
- Entergy filed a reverse‑FOIA suit against EPA to prevent disclosure and to obtain a declaration that the documents are Exemption 4 CBI; EPA agreed to stay release pending resolution and requested stays to allow its third‑party CBI process to conclude.
- Sierra Club moved to intervene of right under Fed. R. Civ. P. 24(a)(2); the magistrate judge granted intervention but the district court denied it; Sierra Club appealed the denial.
- The Fifth Circuit considered only the intervention question (not merits of disclosure), focusing on whether Sierra Club satisfied Rule 24(a)(2)’s four-part test and specifically whether EPA inadequately represented Sierra Club’s interests.
- The Fifth Circuit reversed, holding Sierra Club may intervene of right because Sierra Club’s interests diverged from EPA’s (timing of disclosure, stay/bifurcation, protection of third‑party CBI, and EPA’s cooperation with Entergy), and those divergences were germane to the case so they overcame the presumption of adequate representation.
Issues
| Issue | Plaintiff's Argument (Sierra Club) | Defendant's Argument (EPA/Entergy) | Held |
|---|---|---|---|
| Whether Sierra Club may intervene of right under Rule 24(a)(2) | Sierra Club claimed timely application, an interest in obtaining prompt disclosure, and that EPA inadequately represents its interest because EPA favors stays, protecting third‑party CBI, and cooperating with Entergy | EPA (and Entergy) argued Sierra Club seeks the same ultimate result (disclosure) so representation is adequate; stay/bifurcation are litigation tactics and EPA’s third‑party process is legally required and not adverse | Reversed: Sierra Club may intervene of right — its divergent interests (timing, stay/bifurcation, third‑party CBI protection, EPA–Entergy cooperation) are germane and overcome presumption of adequate representation |
| Whether the presumption of adequate representation by a government party requires a heightened showing | Sierra Club implicitly argued the usual Rule 24(a)(2) standard applies and minimal showing of inadequacy suffices | Entergy invoked Hopwood to argue a stronger showing is required because EPA is a government party | Court held Hopwood’s heightened showing applies only for sovereign interests; no heightened showing required here because EPA’s role did not raise sovereign‑interest presumption |
| Whether EPA’s litigation positions (stay and opposition to bifurcation) are mere tactical differences | Sierra Club argued these positions materially affect timing and scope of disclosure and thus are germane | Entergy argued they are tactical and within district court discretion, not grounds for intervention | Court held in this unique posture the stay/bifurcation positions would materially delay and narrow the case, so they are germane and support intervention |
| Whether EPA’s protection of third‑party CBI and cooperation with Entergy is relevant to Entergy‑CBI litigation | Sierra Club argued EPA’s third‑party process and Entergy’s role will shrink the universe of litigated documents and delay resolution | Entergy argued third‑party CBI determination is separate and legally required, so it does not materially affect Entergy‑CBI adjudication | Court held the third‑party process here impacts timing and scope of the Entergy‑CBI suit and is therefore germane to Sierra Club’s interests; this supports intervention |
Key Cases Cited
- Doe v. Veneman, 380 F.3d 807 (5th Cir. 2004) (defines reverse‑FOIA suit)
- Haspel & Davis Milling & Planting Co. v. Bd. of Levee Comm’rs, 493 F.3d 570 (5th Cir. 2007) (Rule 24(a)(2) standard; timeliness and requirements)
- Edwards v. City of Houston, 78 F.3d 983 (5th Cir. 1996) (two presumptions of adequate representation and intervention framework)
- Brumfield v. Dodd, 749 F.3d 339 (5th Cir. 2014) (applicant’s minimal burden to show potential inadequate representation)
- Texas v. United States, 805 F.3d 653 (5th Cir. 2015) (explains adversity of interest requirement and that courts should identify particular divergent interests)
- Hopwood v. Texas, 21 F.3d 603 (5th Cir. 1994) (discusses presumption where state is party; court limits its application to sovereign‑interest suits)
- Doe v. Glickman, 256 F.3d 371 (5th Cir. 2001) (government party representation and intervention precedent)