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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IN THE UNITED STATES DISTRICT COURT

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FOR THE NORTHERN DISTRICT OF CALIFORNIA
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AMERICAN SMALL BUSINESS LEAGUE,

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For the Northern District of California

United States District Court

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Plaintiff,
v.
DEPARTMENT OF DEFENSE,

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No. C 14-02166 WHA

Defendant,
ORDER GRANTING
UNOPPOSED MOTION
TO INTERVENE

and
SIKORSKY AIRCRAFT CORPORATION,
Proposed Intervenor.
/

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In this action under the Freedom of Information Act, third party Sikorsky Aircraft

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Corporation moves to intervene. Plaintiff and defendant do not oppose. For the reasons that

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follow, the motion to intervene is GRANTED.

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This is an action by plaintiff American Small Business League against the Department

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of Defense. On August 9, 2013, plaintiff filed a FOIA request seeking “[t]he most recent

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comprehensive subcontracting plan submitted by Sikorsky Aircraft Corporation for participation

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in the [DOD’s] Comprehensive Subcontracting Plan Test Program” (Dkt. No. 1 ¶ 5).

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The DOD denied the FOIA request on September 3. Plaintiff then initiated this action.

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An order required the DOD to produce Sikorsky’s subcontracting plan to plaintiff by

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December 3, 2014 (Dkt. No. 28 at 7). A subsequent order then granted Sikorsky’s motion
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to intervene for the purpose of appealing the disclosure order (Dkt. No. 48). Our court

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of appeals reversed the disclosure order. Am. Small Bus. League v. Dep’t of Defense,

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No. 15-15120, 2017 WL 65399 (9th Cir. Jan. 6, 2017).

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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

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(1) intervention is timely; (2) it has a “significant protectable interest” relating to the subject of

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the action; (3) the action’s disposition “may, as a practical matter, impair or impede [its] ability

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to protect its interest; and (4) the existing parties may not adequately represent [its] interests.”

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For the Northern District of California

United States District Court

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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.

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To determine the extent to which representation is adequate, courts consider “(1) whether the

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interest of a present party is such that it will undoubtedly make all of a proposed intervenor’s

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arguments, (2) whether the present party is capable and willing to make such arguments, and

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(3) whether a proposed intervenor would offer any necessary elements to the proceeding that

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other parties would neglect.” Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003).

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The burden to show inadequate representation is typically “minimal,” however, if the applicant

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and the existing party have the “same ultimate objective,” then representation is presumed to be

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adequate. Sikorsky and the DOD have the same ultimate objective — to prevent disclosure of

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Sikorsky’s subcontracting plan (see Dkt. No. 75 at 3).

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The applicant must make a “compelling showing” to rebut the presumption.

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Arakaki, 324 F.3d at 1086. Sikorsky fails to rebut this presumption. First, it is not enough

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that Sikorsky may or may not make the “same arguments” or use the “same evidence” as

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the DOD. Sikorsky does not explain how these potential variations in litigation strategy are

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significant enough to justify intervention. See Perry v. Proposition 8 Official Proponents,

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587 F.3d 947, 954 (9th Cir. 2009) (mere variations in litigation strategy are insufficient to

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support intervention as a matter of right). Second, the fact that Sikorsky “can best explain” the

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impact of the subcontracting plan’s disclosure does not mean that the DOD would neglect to
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address this element. Rather, Sikorksy’s expertise is just a potential improvement. See Blake v.

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Pallan, 554 F.2d 947, 955 (9th Cir. 1977) (benefits of factual knowledge can be obtained by an

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amicus brief “rather than bought with the price of intervention”).

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An applicant requesting permissive intervention under FRCP 24(b) must show (1) that

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there are “independent grounds for jurisdiction; (2) the motion is timely; and (3) the applicant’s

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claim or defense, and the main action, have a question of law or a question of fact in common.”

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Nw. Forest Res. Council v. Glickman, 82 F.3d 825, 839 (9th Cir. 1996).

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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

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For the Northern District of California

United States District Court

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in federal-question cases do not have to establish independent jurisdictional grounds when not

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raising new claims). Second, timeliness is not an issue here because this action only recently

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resumed progress following appeal of the disclosure order and Sikorsky’s intervention would

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not prejudice the other parties. See United States v. Alisal Water Corp., 370 F.3d 915, 921–23

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(9th Cir. 2004). Indeed, both sides have filed statements of non-opposition to Sikorsky’s motion

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(Dkt. Nos. 76, 77). Third, Sikorsky will argue the subcontracting plan is exempt from

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disclosure, which goes to the heart of this action (Dkt. No. 75-1 ¶ 13).

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CONCLUSION
For the foregoing reasons, the motion to intervene is GRANTED.

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IT IS SO ORDERED.

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Dated: June 1, 2017.

WILLIAM ALSUP
UNITED STATES DISTRICT JUDGE

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