OPINION
In this appeal, various third parties contend that the district court erred by denying their motions for intervention. We affirm in part and reverse in part.
I
In the underlying action, the United States alleged that the City of Los Angeles (“the City”), the Board of Police Commissioners of the City of Los Angeles, and the Los Angeles Police Department (“LAPD”) (collectively, the “City defendants”) engaged in a pattern or practice of depriving individuals of constitutional rights through the use of excessive force, false arrests and improper searches and seizures in violation of 42 U.S.C. § 14141.
Before filing this suit, the United States discussed the issues with the City defendants. The parties agreed to enter into a consent decree that would resolve the suit. They negotiated a draft consent decree that was approved by the Los Angeles City Council. Accordingly, on the same day that the United States filed the complaint in this action, the parties filed a “Joint Application to Enter Consent Decree” and lodged a proposed consent decree with the district court.
The Los Angeles Police Protective League (the “Police League”) responded by (1) filing an action seeking to enjoin implementation of the consent decree and a declaration that 42 U.S.C. § 14141 is unconstitutional,
The district court denied all the requests for intervention. The Police League and the Community Interveners have timely appealed that decision. “A district court’s denial of a motion for intervention as of right is an appealable ‘final decision.’ ” Donnelly v. Glickman,
II
Intervention as of right is governed by Federal Rule of Civil Procedure 24(a), which provides in part:
Upon timely application anyone shall be permitted to intervene in an action ... (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.
Thus, one who seeks to intervene as of right in a pending lawsuit must satisfy four requirements. The applicant must show that:
(1) it has a significant protectable interest relating to the property or transaction that is the subject of the action; (2) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; (3) the application is timely; and (4) the existing parties may not adequately represent the applicant’s interest.
Donnelly,
In evaluating whether these requirements are met, courts “are guided primarily by practical and equitable considerations.” Id. Further, courts generally “construe[ ] [the Rule] broadly in favor of proposed intervenors.” United States ex rel. McGough v. Covington Techs. Co.,
The district court found the Police League’s motion to intervene to be timely, a conclusion not challenged on appeal. The district court did not specifically rule on the timeliness of the Community Inter-veners’ motion, but none of the other parties challenged its timeliness below or on appeal. Further, the motion was filed only approximately one and half months after the suit was filed. Thus, only the remaining three factors need to be addressed in this appeal.
“An applicant has a ‘significant protectable interest’ in an action if (1) it asserts an interest that is protected under some law, and (2) there is a ‘relationship’ between its legally protected interest and the plaintiffs claims.” Donnelly,
To determine whether the existing parties adequately represent an applicant’s interest, we consider:
(I) whether the interest of a present party is such that it will undoubtedly make all the intervenor’s arguments; (2) whether the present party is capable and willing to make such arguments; and (3) whether the would-be intervenor would offer any necessary elements to the proceedings that other parties would neglect. The prospective intervenor bears the burden of demonstrating that existing parties do not adequately represent its interests.
Northwest Forest Res. Council v. Glickman,
Ill
The district court denied the Police League’s requests for both intervention as of right and permissive intervention. We reverse as to intervention as of right, and we therefore do not consider whether the Police League was entitled to intervene permissively.
A
The district court determined that the Police League had no protectable interest in the merits of the action, but that it had a protectable interest in the proposed consent decree as a remedy.
The district court erred as to the merits of the action. Of course, as the district court noted, the Police League and the officers it represents have no protectable interest in violating other individuals’ con
The district court found that the Police League did not have a protectable interest in the merits because the proposed consent decree’s injunctive provisions pertained only to the City defendants and because approval of the proposed decree would obviate the need to prove liability. However, in reaching these conclusions the court impermissibly assumed that it would in fact approve the proposed consent decree. No hearing had yet been held on the consent decree and it was unknown whether the district court would enter a decree at all or, if so, in the form then proposed.
When the potential scope of an action is narrowed by amended pleadings or court orders, or when an existing party expressly and unequivocally disclaims the right to seek certain remedies, the court may consider the case as restructured rather than on the original pleadings in ruling on a motion to intervene. For example, in Donnelly, we held that male Forest Service employees had no interest in the remedy phase of an employment discrimination suit brought by female Forest Service employees because the female plaintiffs expressly and unequivocally waived any right to seek remedies that might impact male employees, such as class-based wage or promotion relief.
However, if restructuring of the action has not yet been accomplished, or if a party’s disclaimer of certain remedies is contingent rather than unequivocal, then the district court is not free to consider the potential for issue reduction when determining whether a putative intervener has a protectable interest in the merits of the action. See Forest Conservation Council,
Here, the case had not yet been restructured because the consent decree had not been entered. Further, the United States did not unequivocally and completely disclaim the remedies sought in its complaint against the Police League’s member officers: it argued only that the officers would not be subject to injunctive relief if the district court approved the consent decree. In addition, the consent decree itself contains a provision allowing the United States, in certain circumstances, to seek to dissolve the consent decree and litigate the merits of the action on the basis of the original complaint. Thus, when the district court denied the motion to intervene, the Police League still had a protectable interest in the merits of the litigation. The district court erred in concluding to the contrary, in anticipation of future approval of the proposed consent decree.
The district court correctly concluded that the Police League had a pro-tectable interest in the remedy sought by the United States. The Police League has
Except as part of court-ordered relief after a judicial determination of liability, an employer cannot unilaterally change a collective bargaining agreement as a means of settling a dispute over whether the employer has engaged in constitutional violations. Local Number 93, Int’l Ass’n of Firefighters v. City of Cleveland,
Thus, the Police League’s interest in the consent decree is two-fold. To the extent that it contains or might contain provisions that contradict terms of the officers’ MOU, the Police League has an interest. Further, to the extent that it is disputed whether or not the consent decree conflicts with the MOU, the Police League has the right to present its views on the subject to the district court and have them fully considered in conjunction with the district court’s decision to approve the consent decree. See EEOC v. AT & T,
B
Given the Police League’s protect-able interest in both the merits of the action and the remedy sought by the United States and the status of the case at the time, the district court erred in concluding that the Police League’s interest would not be impaired if intervention was not granted. The consent decree had not been approved, judgment had not been entered and, although the decree had been proposed, the possibility remained that it would not be approved. Further, under the terms of the proposed consent decree, the United States retained the right to file a motion to dissolve the decree and proceed with the suit if the City defendants and the Police League were unable to resolve a collective bargaining issue such that the consent decree could not be implemented fully.
Although it denied intervention, the district court granted the Police League amicus curiae status. However, amicus status is insufficient to protect the Police League’s rights because such status does not allow the Police League to raise issues or arguments formally and gives it no right of appeal. See Forest Conservation Council,
The district court held that the proposed consent decree adequately protects the Police League’s bargaining and negotiation rights. Certain provisions of the proposed consent decree provide that nothing in the consent decree is intended to detract from the Police League’s bargaining rights under California law or existing contractual rights under the MOU.
First, if the Police League and the City defendants are unable to agree on which provisions of the consent decree are subject to bargaining, “the City shall seek declaratory relief from th[e district cjourt to resolve such issue, provided that such bargaining unit shall receive notice and an opportunity to be heard by the [district cjourt on this issue.” Thus, the Police League could be required to resolve a bargaining dispute in federal court rather than state court.
Second, if “the City believes the meet and confer process, consultation, or any such proposed agreements with the applicable bargaining units or such proposed unilateral actions, resulting from the meet and confer process, will impair the City’s ability timely to implement one or more provisions of this Agreement ... then the City shall so report to the [district cjourt and shall seek appropriate declaratory or injunctive relief (including specific performance) on such provision(s).” This paragraph apparently means that if the City decides that the bargaining process required by law is too slow, it can ask the district court to override the required bargaining process and order it to implement the consent decree provision at issue. Thus, the consent decree by its terms purports to give the district court the power, on the City’s request, to override the Police League’s bargaining rights under California law and require the City to implement disputed provisions of the consent decree. As in EEOC v. AT & T, the Police League’s “continuing ability to protect and enforce [its] contract provisions will be impaired or impeded by the consent decree.”
The United States argues that these provisions do not, as a practical matter, impair the Police League’s rights because it is purely speculative that the parties will not agree on what provisions are subject to collective bargaining and on how any disputes over those provisions should be resolved. This analysis is flawed because the relevant inquiry is whether the consent decree “may” impair rights “as a practical matter” rather than whether the decree will “necessarily” impair them. Fed.R.Civ.P. 24(a)(2).
C
The district court did not consider whether the existing parties would adequately protect the Police League’s interests because it held that the action does not impair those interests. In this case, it is clear that the existing parties do not adequately represent the Police League, a determination we may make because the question is a matter of law subject to de novo review and the record is fully developed. See, e.g., Forest Conservation Council,
Normally, “ ‘a presumption of adequate representation generally arises when the representative is a governmental body or officer charged by law with representing the interests of the absentee.’ ” Id. at 1499 (quoting Pennsylvania v. Rizzo,
D
At the time it sought intervention as a matter of right, the Police League had a protectable interest in both the merits of the underlying action and the remedies sought. As the circumstances then existed, the Police League’s interest was likely to be impaired, and no party to the litigation adequately represented that interest. Thus, the district court erred in denying the Police League intervention as a matter of right. Given this conclusion, we need not consider the Police League’s arguments concerning denial of its request for permissive intervention.
IV
The district court properly denied the Community Interveners’ motion to intervene as a matter of right. Although the Community Interveners may have a pro-tectable interest related to the subject matter of the litigation,
However, more importantly, neither the individual nor organizational community members have overcome the presumption that the United States, as a government litigant, is adequately protecting their interests. See Forest Conservation Council,
The Community Interveners do not contest any portion of the consent decree. Rather, they seek to intervene merely to ensure that it is strictly enforced. Thus, they share the same objective as the United States. Any differences they have are merely differences in strategy, which are not enough to justify intervention as a
Relying on Sagebrush Rebellion, Inc. v. Watt,
However, Sagebrush was a special ease. In it, the new named defendant, Secretary of the Interior James G. Watt, had been the president of the legal foundation representing the plaintiffs in the specific case at issue prior to his appointment. Id. at 528-29. Here, no member of the new administration was involved on the other side of this litigation. Campaign rhetoric and perceived philosophic differences without more specific objective evidence in the record are insufficient by themselves to demonstrate adversity of interest. Thus, the mere change of administration is insufficient to alter the conclusion that the interests of the Community Interveners are adequately protected by the United States.
V
Although the district court did not err in denying the Community Interveners’ motion to intervene as a matter of right, the court did not conduct the proper analysis in determining permissive intervention. Thus, remand is required.
Permissive intervention is governed by Federal Rule of Civil Procedure 24(b), which provides in part:
Upon timely application anyone may be permitted to intervene in an action ... (2) when an applicant’s claim or defense and the main action have a question of law or fact in common.... In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.
Thus, “a court may grant permissive intervention where the applicant for intervention shows (1) independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s claim or defense, and the main action, have a question of law or a question of fact in common.” Northwest Forest Res. Council,
The district court did not specifically apply the standards for permissive intervention to the Community Interveners. Rather, the district court held that, as a matter of law, intervention for enforcement of a proposed government consent decree is never permissible. We have never so held. Indeed, such a holding would be inconsistent with our treatment of the interveners in United States v. Stone Container Corp.,
The district court relied on Hook v. Arizona,
In contrast, the Community Interveners in this case, like the interveners in Stone Container, sought permissive intervention prior to the approval of the consent decree to protect their interests from the inception of the litigation. Thus, to use a contract analogy, at the time they sought intervention, the Community Interveners had not acquired third-party beneficiary status because no contract had yet been formed. Restatement (Second) of Contracts § 309(1) (“A promise creates no duty to a beneficiary unless a contract is formed between the promisor and the promisee; and if a contract is voidable or unenforceable at the time of its formation the right of any beneficiary is subject to the infirmity”). Therefore, the logic of Hook and Klamath Water Users is not applicable in the present context, and the court erred in concluding otherwise.
If the court had allowed permissive intervention, the Community Interveners would have made proposals in connection with the proposed consent decree. The fact that the Community Interveners may be also interested in enforcement of the consent decree is not fatal to their permissive intervention request. Because the request was filed before the consent decree was approved, the request should have been analyzed on its own merits without anticipatory consideration of the effect of the proposed consent decree. Thus, the district court erred in holding that permissive intervention was improper as a matter of law, and we must remand so that the district court may reassess the request for permissive intervention under the criteria established by Rule 24(b).
VI
The United States and the City defendants urge us to prevent intervention because allowing it would slow the process. These parties underscore the difficult and complex negotiations predating the proposal of the consent decree. However, the district court’s management of this case demonstrates that it is perfectly capable of managing this litigation in a fair, but expedient fashion. More importantly, the idea of “streamlining” the litigation, as both the City defendants and the United States describe it, should not be accomplished at the risk of marginalizing those — such as the Police League and the Community Inter-veners — who have some of the strongest interests in the outcome.
Thus, for the reasons stated herein, we reverse the district court’s order denying the Police League’s motion for intervention as a matter of right. We affirm the district court’s denial of the Community Interveners’ motion to intervene as a matter of right. We reverse the district court’s denial of the Community Interven-ers’ motion for permissive intervention, and remand that question to the district court for re-analysis under Rule 24(b).
After the notices of appeal were filed in this case, the district court approved and entered the consent decree. It was proper for the district court to continue to act in the case notwithstanding the intervention appeal because no stay was entered. Thus, although this appeal involves intervention decisions made at the onset of the case, our holding does not require the district court to turn back the clock or
AFFIRMED IN PART; REVERSED IN PART; REMANDED.
Notes
. The statute at issue, 42 U.S.C. § 14141, provides:
(a) Unlawful conduct
It shall be unlawful for any governmental authority, or any agent thereof, or any person acting on behalf of a governmental authority, to engage in a pattern or practice of conduct by law enforcement officers ... that deprives persons of rights, privileges, or immunities secured or protected by the Constitution or laws of the United States..
(b) Civil action by Attorney General
Whenever the Attorney General has reasonable cause to believe that a violation of paragraph (1) has occurred, the Attorney General, for or in the name of the United States, may in a civil action obtain appropriate equitable and declaratory relief to eliminate the pattern or practice.
. The dismissal of this action is the subject of a separate appeal before this Court.
. Southern Christian Leadership Conference of Los Angeles, ACLU of Southern California, Homeboy Industries, Asian Pacific American Legal Center and Radio Sin Fronteras.
. Michael Garcia, Ernesto Luevano, Due Pham, Jesus Nieto, Salvador Salas, Robert Hernandez, Carols Gonzalez, David Askew, Timmy Campbell, Alberto Lovato, Tonye Allen, and the Reverend James M. Lawson, Jr.
. The individual community members assert an interest in being free from unconstitutional police misconduct. The organizational community members assert an interest analogous to the interest asserted by special interest groups in suits challenging measures the organizations helped to create. E.g., Idaho Farm Bureau Fed’n v. Babbitt,