Fair Political Practices Commission v. United States Postal Service

Filing 21

ORDER signed by Judge Garland E. Burrell, Jr. on 4/26/2012 ORDERING that Eisen's 10 Motion to Intervene is DENIED. (Zignago, K.)

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IN THE UNITED STATES DISTRICT COURT

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FOR THE EASTERN DISTRICT OF CALIFORNIA

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FAIR POLITICAL PRACTICES
COMMISSION, an Agency of the
State of California,
Plaintiff,

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v.

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UNITED STATES POSTAL SERVICE,

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Defendant.
________________________________

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2:12-cv-00093-GEB-CKD
ORDER DENYING WILLIAM EISEN’S
APPLICATION TO INTERVENE

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Intervenor-Applicant

William

Eisen

(“Eisen”),

in

propria

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person, seeks to intervene as a defendant as a matter of right under

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Federal Rule of Civil Procedure (“Rule”) 24(a); and in the alternative,

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Eisen seeks permissive intervention under Rule 24(b). (Eisen’s Appl. to

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Intervene (“Appl.”) 1:22.) Plaintiff Fair Political Practices Commission

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(“FPPC”) opposes the application. Defendant United States Postal Service

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(“USPS”) filed a statement of non-opposition to the application.
I. Legal Standard

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A. Intervention of Right
“Under

Federal

Rule

24(a),

intervention

of

right

[is]

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permitted when either federal statute confers the unconditional right to

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intervene in the action, or when the applicant claims an interest which

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may, as a practical matter, be impaired or impeded by disposition of the

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pending action, and that interest is not adequately represented by

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existing parties.” Equal Emp’t Opportunity Comm’n v. Giumarra Vineyards

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Corp., No. 1:09-CV-02255, 2010 WL 3220387, at *2 (E.D. Cal. Aug. 13,

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2010). In the absence of a federal statute granting an unconditional

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right to intervene,

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[a]n applicant seeking intervention as of right
must show that: (1) [he] 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.

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Donnelly v. Glickman, 159 F.3d 405, 409 (9th Cir. 1998) (citation

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omitted). “While an applicant seeking to intervene has the burden to

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show that these four elements are met, the requirements are broadly

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interpreted in favor of intervention.” Citizens for Balanced Use v.

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Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011) (citation

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omitted). However, “[a]n applicant’s failure to satisfy any one of the

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requirements is fatal to the application[; therefore, the court] need

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not

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satisfied.” Perry v. Schwarzenegger, 630 F.3d 898, 903 (9th Cir. 2011)

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(internal

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omitted).

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reach

the

remaining

quotation

elements

marks,

if

alteration

one

in

of

the

elements

original,

and

is

not

citation

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In evaluating an application to intervene, “[c]ourts are to

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take all well-pleaded, nonconclusory allegations in the [application] to

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intervene . . . [and] the proposed . . . answer in intervention . . . as

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true

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Biological Diversity v. Berg, 268 F.3d 810, 820 (9th Cir. 2001).

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B. Permissive Intervention

absent

sham,

frivolity

or

other

objections.”

Sw.

Cntr.

for

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“An applicant who seeks permissive intervention must prove

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that [he] meets three threshold requirements: (1) [he] shares a common
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question of law or fact with the main action; (2) [his] motion is

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timely; and (3) the court has an independent basis for jurisdiction over

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the applicant’s claims.” Donnelly, 159 F.3d at 412 (citation omitted).

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“Even if an applicant satisfies those threshold requirements, the

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district court has discretion to deny permissive intervention.” Id.

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(citation omitted); see Kootenai Tribe of Idaho v. Veneman, 313 F.3d

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1094, 1111 (9th Cir. 2002) (providing a non-exhaustive list of factors

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the district court should consider in exercising its discretion),

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abrogated on other grounds by Wilderness Soc. v. U.S. Forest Serv., 630

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F.3d 1173, 1178 (9th Cir. 2011).

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II. Background
A. FPPC’s Allegations

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This case concerns a Freedom of Information Act (“FOIA”)

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request FPPC submitted to USPS, seeking information concerning the

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number of pieces of mail Eisen sent through USPS using his bulk mailing

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permit on specific dates in 2008. (Compl. ¶¶ 1, 12 & 14.) FPPC alleges

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in its complaint that it is “an agency of the State of California . . .

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charged

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Political

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activities in local elections. Id. ¶ 3. FPPC alleges it “received a

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sworn complaint . . . alleging [Eisen] violat[ed] . . . the mass mailing

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provisions of the [PRA] in connection with a local California campaign.”

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Id. ¶ 8. FPPC alleges its “investigation revealed evidence that [Eisen]

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produced and sent two separate mailings opposing his recall in the

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November 2008 election . . . [in which he] falsely indicated that a

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taxpayers’ association and regional political club were responsible for

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the mailers.” Id. ¶ 10.

with

investigating

Reform

Act

of

possible
1974

violations

(‘PRA’),]”

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3

of

which

the

[California

governs

campaign

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FPPC alleges that as part of its investigation, it “submitted

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a FOIA request to . . . USPS . . . [seeking information regarding] the

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number of pieces of mail related to [Eisen’s] bulk mailing permit number

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that [USPS] delivered on or around the 9th, 10th, and 22nd of October in

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2008.” Id. ¶¶ 12 & 14. FPPC alleges USPS redacted “nearly all of the

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contents” of the postage statements it provided in response to FPPC’s

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FOIA request, including the total number of pieces of mail sent under

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the bulk mailing permit. Id. ¶ 16. “Regarding the redactions, [USPS]

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cited

FOIA

disclosure

exemptions

pertaining

to

information

of

a

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commercial or financial nature that are privileged and confidential or

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would not be publicly disclosed under good business practices (FOIA

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Exemptions 3 and 4).” Id. (citing 5 U.S.C. § 552(b)(3) & (4)). FPPC

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seeks in its complaint an order declaring that USPS violated FOIA by

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improperly redacting the total number of pieces of mail sent under the

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bulk mailing permit; an order directing USPS “to immediately disclose

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and produce copies of the requested records to [FPPC]”; and attorney’s

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fees and costs. Id. ¶¶ 30-35.

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B. Eisen’s Allegations

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Eisen alleges in his application that the information FPPC

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requests

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standard mail postal permit belonging to the Committee Against Measure

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BB for which Eisen was the treasurer.” (Appl. 1:26-28.) This allegation

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contradicts FPPC’s allegation that the bulk mailing permit belongs to

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Eisen. However, since Eisen’s “well-pleaded, nonconclusory allegations”

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must be accepted as true for purposes of this motion, the court resolves

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this conflict in favor of Eisen’s allegation. Sw. Cntr. for Biological

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Diversity v. Berg, 268 F.3d at 820.

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is

“contained

in

USPS

postage

Eisen also asserts:
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statements

issued

under

a

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3
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The FPPC contends that the requested information
will aid in its prosecution of Eisen for violating
the [PRA] by allegedly sending out mailers on
behalf of a local Republican club and taxpayer
association using the postal permit. Eisen denies
[FPPC’s] allegations.
(Appl. 2:1-4.)

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Eisen further contends USPS notified him of FPPC’s FOIA

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request under 39 C.F.R. § 265.8, which requires USPS to “provide a

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submitter [of business information] with prompt written notice of a

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[FOIA] request for the submitter’s business information . . . in order

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to afford the submitter an opportunity to object to disclosure[.]”

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(Appl. 5:1-11; 39 C.F.R. § 265.8(b)(1).) Eisen “object[ed] to disclosure

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of the requested information” in response to USPS’s notice. (Appl. 5:10-

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11.)

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Eisen asserts the following in the “Affirmative Defenses”
section of his proposed answer in intervention:
For a first affirmative defense, the complaint
seeks the disclosure of privileged information[,]
the disclosure of which would infringe on [Eisen’s]
right [to] privacy under the California and federal
constitutions.
For a second affirmative defense, the action
infringes on [Eisen’s] First Amendment rights to
free speech and of association.
For a third affirmative defense, the plaintiff
has unclean hands.
(Eisen’s Ans. 2:15-21.)

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III. Discussion
A. Intervention of Right
1. Rule 24(a)(1)

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Eisen argues for the first time in his reply brief that he has

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“an unconditional right to intervene by a federal statute under Rule

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24(a)(1),” contending that “implicit in a right to object to disclosure

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[of business information under 39 C.F.R. § 265.8] is a right to
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participate or intervene in an action challenging those objections.”

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(Reply 2:13-20.) However, “[t]he . . . court need not consider arguments

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raised for the first time in a reply brief.” Zamani v. Carnes, 491 F.3d

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990, 997 (9th Cir. 2007). Therefore, this argument is not considered,

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since Eisen raises it for the first time in his reply brief and the

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issue has not been fully briefed by the parties. Sogeti USA LLC v.

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Scariano, 606 F. Supp. 2d 1080, 1086 (D. Ariz. 2009) (“As [the moving

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party] improperly raise[s] this issue for the first time in the reply,

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[the nonmoving party] has no opportunity to respond and the Court has

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not received the benefit of full briefing.”).
2. Rule 24(a)(2)

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i. Significant Protectable Interest

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Eisen also argues that the information FPPC seeks “comprises

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personal data[,]” the “[r]elease of [which] . . . would infringe on [his

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constitutional] right to privacy.” (Appl. 1:26-28, 6:1-2; Eisen’s Reply

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(“Reply”) 3:6-7; Eisen’s Ans. 2:16-21.) Eisen also contends that the

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requested information is “privileged” and “confidential[,]” since it is

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the type of information that “‘would customarily not be released to the

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public[.]’” (Appl. 5:13-14 & n.4 (quoting Forsham v. Harris, 445 U.S.

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169, 184-85 (1980)).)

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FPPC rejoins that “Eisen has no ‘significant protectable

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interest’ by virtue of his claim that the information [FPPC] seeks is

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‘privileged and confidential[,]’ . . . [since] FPPC has not requested

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personal data to which [Eisen] has any right of privacy[.]” (Opp’n 3:18-

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21.) FPPC further argues that “[a]t issue is simply the number of pieces

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of mail [that were] sent using [a] bulk mail account with [USPS] on

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certain dates.” (Opp’n 3:21-22.)

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“Whether

an

applicant

for

intervention

.

.

.

of

right

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demonstrates sufficient interest in an action is a practical, threshold

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inquiry,

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established.” Citizens for Balanced Use, 647 F.3d at 897 (internal

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quotation marks, alteration in original, and citation omitted). “To

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demonstrate

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establish that the interest is protectable under some law and that there

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is a relationship between the legally protected interest and the claims

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at issue.” Id. (citation omitted).

and

a

no

specific

significant

legal

or

protectable

equitable

interest,

interest

an

need

applicant

be

must

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Eisen has not shown how a record of the number of pieces of

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mail that were sent using the Committee Against Measure BB’s bulk

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mailing permit is his “personal data”. Further, his assertions in his

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application that the bulk mailing permit belongs to the committee, and

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that he objected to disclosure of the information under federal law

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exempting “business information” from disclosure are incongruous with

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his argument that the information FPPC seeks is his “personal data” in

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which he has a personal “legally protected interest.” Citizens for

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Balanced Use, 647 F.3d at 897. Eisen’s assertions are insufficient to

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demonstrate that he has a personal legally protectable privacy interest

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at stake in this case. Therefore, he has failed to show he is entitled

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to intervene as a matter of right, and this portion of his application

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is denied. Perry v. Schwarzenegger, 630 F.3d at 903.

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B. Permissive Intervention

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FPPC also argues “Eisen has not met his burden to prove that

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permissive intervention is appropriate,” since “[Eisen] raises no issue

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of law or fact [in common with the main action] other than a purported

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privacy interest in the underlying information [FPPC] seeks.” (Opp’n

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4:14-16.) Eisen counters that he “clearly shares some defenses with
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[USPS] and common questions of law[,] such as whether the requested

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information

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business practices exemption [in 39 C.F.R. § 265.6(e)(3)].” (Reply 5:26-

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28.)

was

properly

withheld

from

disclosure

under

the

good

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However, Eisen alleges only the following affirmative defenses

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in his proposed answer to FPPC’s complaint: that disclosure would

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violate his rights to privacy, freedom of speech, and freedom of

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association, and that FPPC has unclean hands. (Eisen’s Ans. 2:15-21.)

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Eisen has not demonstrated how these defenses share a common issue of

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law or fact with FPPC’s FOIA claim. “The language of [Rule 24(b)(2)]

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makes clear that [permissive intervention under Rule 24(b)(2) must be

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denied since Eisen’s defenses and claims] contain[] no question of law

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or fact that is raised [in] the main action . . . .” Kootenai Tribe of

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Idaho, 313 F.3d at 1111. Therefore, this portion of Eisen’s application

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is denied.

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IV. Conclusion

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For the stated reasons, Eisen’s application to intervene is

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denied.

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Dated:

April 26, 2012

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GARLAND E. BURRELL, JR.
United States District Judge

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