United States v. BASF-Inmont Corp.United States v. BASF-Inmont Corp.
NOTICE: Sixth Circuit Rule 24(c) states that citation of unpublished dispositions is disfavored except for establishing res judicata, estoppel, or the law of the case and requires service of copies of cited unpublished dispositions of the Sixth Circuit.
UNITED STATES of America, Plaintiff-Appellee;
Citizens United, Proposed Intervenor-Appellant,
v.
BASF-INMONT CORPORATION; Chrysler Corporation; Ford Motor
Company; General Motors Corporation; Sea Ray Boats,
Incorporated; Reichhold Chemicals, Incorporated; the
Sherwin-Williams Company; Grow Group, Incorporated; Mayco
Plastics, Incorporated; Met-L-Aid, Incorporated;
Allied-Signal, Incorporated; Hoover Universal,
Incorporated; Mercury Paint Company; Lapeer Metal Products
Company; Foamseal, Incorporated; BFI of North Metro,
Incorporated; Richfield Disposal, Incorporated; and
Olsonite Corporation, Defendants-Appellees;
Bundy Corporation, et al., Defendants.
No. 93-1807.
United States Court of Appeals, Sixth Circuit.
April 18, 1995.
Before: KEITH, NORRIS, and BATCHELDER, Circuit Judges.
PER CURIAM.
Citizens Union appeals the district court's denial of its motion to intervene and seeks review of the district court's entry of a consent decree in this CERCLA action. See United States v. BASF-Inmont Corp.,
I.
On July 12, 1991, the United States filed this action for injunctive relief pursuant to Sec. 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980,
In compliance with Secs. 117 and 122(i) of CERCLA,
On March 13, 1992, the EPA respondеd to the comments submitted by CU and other concerned persons. After reviewing the comments and responses, the United States moved the district court for entry of the decree on March 17, 1992. On the same day, the sеttling defendants also moved for entry of the decree.
On April 9, 1992, the district court held a status conference. The district court decided not to hold a public hearing on the issue of whether to enter the proposed decree. The district court's reasons for this decision included the sixty-day opportunity for public comment and the absence of motions to intervene.
On August 12, 1992, CU filed its motion to intervene. In an order еntered March 24, 1993, the district court denied CU's motion to intervene as untimely and granted the parties' motion for approval of the consent decree. In doing so, the district court considered and rejected CU's principal substantive objections to the decree. On June 30, 1993, the district court denied as untimely CU's motion to intervene for the appeal. This appeal followed.
II.
In a motion to this court, the settling defendants claimed that CU's notice of appeal, filed approximatеly fifty days1 after entry of judgment, was untimely. The settling defendants argued that CU, as a proposed intervenor, is not a "party" within the meaning of
A panel of this court properly denied the motion. Courts apply the 60-day limitation to any case in which the United States or its agency or officer is a party, withоut regard to the appealing entity's status as a proposed intervenor. See, e.g., Valley Ranch Dev. Co. v. FDIC,
III.
For intervention as of right2 to be proper, the application for intervention must be timely. See
(1) the point to which the suit has progressed;
(2) the purpose for which intervention is sought;
(3) the length of time preceding the application during which the proposed intervenor knew or reasonably should have known of his interest in the case;
(4) the prejudice to the original parties due to the proposed intervenor's failure, after he knew or reasonably should have known of his interest in the case, to apply promptly for intervention; and
(5) the existence of unusual circumstances.
Bradley v. Milliken,
A. Stage of the Proceeding
As the district court held, the purpose of the timeliness inquiry is to prevent "a tardy intervenor from derailing a lawsuit within sight of the terminal." United States v. South Bend Community Sch. Corp.,
CU argues that the motion to intervene did not come during the final phase of the litigation, because the district court did not approve the decree until seven months after CU filed its motion to intervene. At the time CU filed its motion to intervene, only one step in the litigation remained: the district court's approval of the proposed consent decrеe. This is the final stage of the proceeding. Therefore, the district court properly found the first factor to weigh against intervention.
B. Purpose
Where intervention would result only in the reconsideration of claims or оbjections previously presented to and rejected by the district court, the purpose of the intervention is not compelling. United States v. Pitney Bowes, Inc.,
As CU concedes in its brief, it has "participated in this litigation as a de facto party from the earliest stages of the administrative process through consideration of the motion to enter the Consent Decree." The district court considered and rejected CU's objections to the consent decree. As the district court held, these circumstances counsel against intervеntion.
C. Length of Delay
The first step in the inquiry under this factor is determining the point at which the proposed intervenor knew or reasonably should have known of his interest in the case. Actual or constructive knowledge that one's intеrests might be affected generally suffices. See, e.g., Cuyahoga Valley Ry. Co. v. Tracy,
As the district court noted, the objectives of CU and of the United States may differ in terms of the degree of clean-up desired. CU beсame aware of the differences by, at the latest, July 1991, when the government lodged the consent degree with the district court. See NAACP v. New York,
Because of CU's awareness, reliance on the opportunities for comment was inappropriate. See Pitney Bowes,
D. Prejudice
Where intervention would require renewal of negotiations and a delay in implementing CERCLA remediation, the intervention would prejudice the parties' interests. Pitney Bowes,
E. Unusual Circumstances
CU argues that its extensive commenting is an unusual circumstance that militates in favor of intervention because granting intervention would impose no "significant new or costly burdens on the existing parties or the Court." As discussed, the district court's refusal to allow CU a second bite at the apple did not prеjudice CU. To that, CU responds that the district court's denial of CU's motion to intervene for the appeal is a new apple, of which CU deserves a bite. As the government points out, however, there is nothing at аll unusual about the denial of a right to appeal under these circumstances. The inevitable effect of a denial of intervention is that the proposed intervenor has no right to appeal. Moreover, where the parties enter into a consent decree, the occurrence of an appeal, not the absence of one, would be unusual. We therefore agree with the distriсt court that the unusual circumstance of CU's extensive commenting counsels against intervention.
We also agree with the district court that CERCLA's clear policy favoring speedy settlement and execution оf the remedy is an unusual circumstance urging denial of intervention. See Pitney Bowes,
IV.
All factors of the timeliness inquiry counsel against granting Citizens United's motion to intervene. The judgment of the district court is AFFIRMED.
Notes
The exact date of the filing of the notice of appeal is unclear from the record. The docket lists two dates: May 13, 1993, and May 17, 1993. The notice itself is stamped with the date May 13, 1993. However, a handwritten note on the notice suggеsts that the filing fee was not paid until May 18, 1993. In any event, the notice was filed more than thirty but fewer than sixty days after the March 24, 1993, entry of judgment
Before the district court, CU sought permissive intervention as well. CU's appellate briеf contains no mention of permissive intervention; therefore, CU has waived the issue
Timeliness is the first of four conditions for intervention as of right. The applicant must also show a substantial legal interest in the subject matter of the pending litigation, an impaired ability to protect that interest, and inadequate representation of that interest by the present parties.