American Small Business League v. Department of Defense

Filing 79

ORDER GRANTING UNOPPOSED MOTION TO INTERVENE by Judge William Alsup [granting 75 Motion to Intervene]. (whasec, COURT STAFF) (Filed on 6/1/2017)

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1 2 3 4 5 6 IN THE UNITED STATES DISTRICT COURT 7 FOR THE NORTHERN DISTRICT OF CALIFORNIA 8 9 AMERICAN SMALL BUSINESS LEAGUE, 11 For the Northern District of California United States District Court 10 12 13 Plaintiff, v. DEPARTMENT OF DEFENSE, 14 15 16 17 No. C 14-02166 WHA Defendant, ORDER GRANTING UNOPPOSED MOTION TO INTERVENE and SIKORSKY AIRCRAFT CORPORATION, Proposed Intervenor. / 18 19 In this action under the Freedom of Information Act, third party Sikorsky Aircraft 20 Corporation moves to intervene. Plaintiff and defendant do not oppose. For the reasons that 21 follow, the motion to intervene is GRANTED. 22 This is an action by plaintiff American Small Business League against the Department 23 of Defense. On August 9, 2013, plaintiff filed a FOIA request seeking “[t]he most recent 24 comprehensive subcontracting plan submitted by Sikorsky Aircraft Corporation for participation 25 in the [DOD’s] Comprehensive Subcontracting Plan Test Program” (Dkt. No. 1 ¶ 5). 26 The DOD denied the FOIA request on September 3. Plaintiff then initiated this action. 27 An order required the DOD to produce Sikorsky’s subcontracting plan to plaintiff by 28 December 3, 2014 (Dkt. No. 28 at 7). A subsequent order then granted Sikorsky’s motion 1 1 to intervene for the purpose of appealing the disclosure order (Dkt. No. 48). Our court 2 of appeals reversed the disclosure order. Am. Small Bus. League v. Dep’t of Defense, 3 No. 15-15120, 2017 WL 65399 (9th Cir. Jan. 6, 2017). 4 5 6 Sikorsky now seeks to intervene for all purposes under both FRCP 24(a) and FRCP 24(b). This order addresses each in turn. To intervene as a matter of right under FRCP 24(a), an applicant must establish that 7 (1) intervention is timely; (2) it has a “significant protectable interest” relating to the subject of 8 the action; (3) the action’s disposition “may, as a practical matter, impair or impede [its] ability 9 to protect its interest; and (4) the existing parties may not adequately represent [its] interests.” 11 For the Northern District of California United States District Court 10 Citizens for Balanced Use v. Mont. Wilderness Ass’n, 647 F.3d 893, 897 (9th Cir. 2011). The main issue is whether the DOD can adequately represent Sikorsky’s interests. 12 To determine the extent to which representation is adequate, courts consider “(1) whether the 13 interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s 14 arguments, (2) whether the present party is capable and willing to make such arguments, and 15 (3) whether a proposed intervenor would offer any necessary elements to the proceeding that 16 other parties would neglect.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003). 17 The burden to show inadequate representation is typically “minimal,” however, if the applicant 18 and the existing party have the “same ultimate objective,” then representation is presumed to be 19 adequate. Sikorsky and the DOD have the same ultimate objective — to prevent disclosure of 20 Sikorsky’s subcontracting plan (see Dkt. No. 75 at 3). 21 The applicant must make a “compelling showing” to rebut the presumption. 22 Arakaki, 324 F.3d at 1086. Sikorsky fails to rebut this presumption. First, it is not enough 23 that Sikorsky may or may not make the “same arguments” or use the “same evidence” as 24 the DOD. Sikorsky does not explain how these potential variations in litigation strategy are 25 significant enough to justify intervention. See Perry v. Proposition 8 Official Proponents, 26 587 F.3d 947, 954 (9th Cir. 2009) (mere variations in litigation strategy are insufficient to 27 support intervention as a matter of right). Second, the fact that Sikorsky “can best explain” the 28 impact of the subcontracting plan’s disclosure does not mean that the DOD would neglect to 2 1 address this element. Rather, Sikorksy’s expertise is just a potential improvement. See Blake v. 2 Pallan, 554 F.2d 947, 955 (9th Cir. 1977) (benefits of factual knowledge can be obtained by an 3 amicus brief “rather than bought with the price of intervention”). 4 An applicant requesting permissive intervention under FRCP 24(b) must show (1) that 5 there are “independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s 6 claim or defense, and the main action, have a question of law or a question of fact in common.” 7 Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996). 8 9 First, the independent jurisdictional requirement does not apply here because Sikorsky is requesting to intervene in a federal-question case and is not raising new claims. See Freedom from Religion Found., Inc. v. Geithner, 644 F.3d 836, 844 (9th Cir. 2011) (proposed intervenors 11 For the Northern District of California United States District Court 10 in federal-question cases do not have to establish independent jurisdictional grounds when not 12 raising new claims). Second, timeliness is not an issue here because this action only recently 13 resumed progress following appeal of the disclosure order and Sikorsky’s intervention would 14 not prejudice the other parties. See United States v. Alisal Water Corp., 370 F.3d 915, 921–23 15 (9th Cir. 2004). Indeed, both sides have filed statements of non-opposition to Sikorsky’s motion 16 (Dkt. Nos. 76, 77). Third, Sikorsky will argue the subcontracting plan is exempt from 17 disclosure, which goes to the heart of this action (Dkt. No. 75-1 ¶ 13). 18 19 CONCLUSION For the foregoing reasons, the motion to intervene is GRANTED. 20 21 IT IS SO ORDERED. 22 23 Dated: June 1, 2017. WILLIAM ALSUP UNITED STATES DISTRICT JUDGE 24 25 26 27 28 3

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