United States of America v. Arizona, State of, et al

Filing 125

RESPONSE in Opposition re 122 MOTION to Intervene filed by United States of America. (Chilakamarri, Varu)

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Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681) U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel. [phone]/Fax [phone] [e-mail] Attorneys for the United States

UNITED STATES DISTRICT COURT DISTRICT OF ARIZONA The United States of America, Plaintiff, v. The State of Arizona; and Janice K. Brewer, Governor of the State of Arizona, in her Official Capacity, No. 2:10-cv-1413-SRB P L A I N T I F F ' S RESPONSE TO RICHARD MACK'S MOTION TO INTERVENE

Defendants. The United States respectfully submits this memorandum in opposition to Richard Mack's motion to intervene. Rather than attempting to establish the grounds for his permissive or mandatory intervention under Rule 24, Mr. Mack simply opines on the underlying merits of this action and the wisdom of this Court's decision to preliminarily enjoin portions of S.B. 1070. Because he has wholly failed to show why he should be permitted to become a party to this action, his motion is deficient on its face and must be rejected.

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Mr. Mack fails to meet the requirements for intervention under Rule 24(a),1 because he does not have a significantly protectable interest in this matter. This requirement is generally satisfied when "the interest is protectable under some law," and "there is a relationship between the legally protected interest and the claims at issue." Arakaki v. Cayetano, 324 F.3d 1078, 1084 (9th Cir.2003) (internal quotation marks omitted). The Ninth Circuit has made clear that an "undifferentiated, generalized interest in the outcome of an ongoing action is too porous a foundation on which to premise intervention as of right." United States v. Alisal Water Corp., 370 F.3d 915, 920 (9th Cir. 2004). Mr. Mack has no conceivable "protectable interest" in this matter, nor has he asserted one. In fact, Mr,. Mack has acknowledged that his asserted interest is shared by "all Americans." Motion at 9. Moreover, he has no right to intervene, because the interest that he is presumably seeking to protect ­ the validation of S.B. 1070 ­ is already adequately represented by the Defendants. See Arakaki, 324 F.3d at 1086 (finding that there is "an assumption of adequacy when the government is acting on behalf of a constituency that it represents"). In addition, Mr. Mack would not qualify for permissive intervention under Rule 24(b).2 First, he cannot show an independent ground for jurisdiction, because there is no live case or controversy between himself and the United States, which seeks no relief against Mr. Mack. See Diamond v. Charles, 476 U.S. 54, 66 (1986); Silver v. Babbitt, 166 F.R.D. 418, 434 (D.Ariz. 1994); Perry, 587 F.3d at 950 & n.2. In any event, this Court should exercise its discretion to deny permissive intervention here, because Mr. Mack's interests are already adequately protected, see Medical Protective Co. v. Pang, 2006 WL 1544192, at *5 To intervene as of right, a proposed intervenor bears the burden of demonstrating that: (1) his motion is timely; (2) he has a "significantly protectable" interest relating to the property or transaction which is the subject of the action; (3) he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest; and (4) his interest is inadequately represented by the parties. United States v. Aerojet General Corp., 606 F.3d 1142, 1148 (9th Cir. 2010). For permissive intervention, an intervenor must show that: (1) there are independent grounds for jurisdiction; (2) the motion is timely; and (3) that his claims or defenses and the main action share a common question of law or fact. See So. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 (9th Cir. 2002). "Even if an applicant satisfies those threshold requirements, the district court has discretion to deny permissive intervention." Id. 2
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(D.Ariz.,2006), and his intervention will only unnecessarily complicate this matter. See Solid Waste Agency of Northern Cook Cty. v. U.S. Army Corps of Eng'rs, 101 F.3d 503, 508 (7th Cir. 1996) ("Increasing the number of parties to a suit can make the suit unwieldy."). Accordingly, the Court should deny Richard Mack's Motion to Intervene.

DATED: September 28, 2010

Respectfully Submitted, Tony West Assistant Attorney General Dennis K. Burke United States Attorney Arthur R. Goldberg Assistant Director, Federal Programs Branch /s/ Varu Chilakamarri Varu Chilakamarri (NY Bar #4324299) Joshua Wilkenfeld (NY Bar #4440681) U.S. Department of Justice, Civil Division 20 Massachusetts Avenue, N.W. Washington, DC 20530 Tel. [phone]/Fax [phone] [e-mail] Attorneys for the United States

CERTIFICATE OF SERVICE I hereby certify that on September 28, 2010, I electronically transmitted the attached document to the Clerk's Office using the CM/ECF System for filing and transmittal of Notice of Electronic Filing to the CM/ECF registrants on record in this matter. /s/ Varu Chilakamarri Varu Chilakamarri

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