Brown et al v. Perez

Filing 106

ORDER denying 92 Motion to Intervene. So Ordered by Judge Raymond P. Moore on 07/13/2017. (rmlc2)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLORADO
Judge Raymond P. Moore

Case No. 13-cv-01722-RM-MJW
BLAKE BROWN, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF LABOR, et al.,
Defendants.
______________________________________________________________________________
OPINION AND ORDER
______________________________________________________________________________
Pending before the Court is proposed intervenor Elsevier, Inc.’s (“Elsevier”) Motion to
Intervene (“the motion to intervene”) (ECF No. 92), pursuant to Fed.R.Civ.P. 24(a) (“Rule 24(a)”).
Plaintiffs have filed an objection to the motion to intervene (ECF No. 103), and Elsevier has filed
a reply (ECF No. 105).1 The Court makes the following findings.
I.

Legal Standard
Rule 24(a) requires intervention as a matter of right when anyone “claims an interest relating

to the property or transaction that is the subject of the action, and is so situated that disposing of the
action may as a practical matter impair or impede the movant’s ability to protect its interest, unless
existing parties adequately represent that interest.” Fed.R.Civ.P. 24(a)(2). Any such request to
intervene as a matter of right must be made on timely motion. Id. Timeliness is assessed based upon

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Also pending are plaintiffs’ and defendants’ motions for discovery. (ECF Nos. 98, 100.) The
Court will address the same in a separate order.

the totality of the circumstances, with three factors being “particularly important.” Oklahoma ex rel.
Edmondson v. Tyson Foods, Inc., 619 F.3d 1223, 1232 (10th Cir. 2010). First, “the length of time
since the movant knew of its interests in the case.” Second, “prejudice to the existing parties.” And
third, “prejudice to the movant.” Id. (alterations and citations omitted). These factors are not
exclusive, and a court “should also consider the existence of any unusual circumstances.” Id.
(citation omitted).
II.

Discussion
The Court addresses the timeliness of the motion to intervene first. Elsevier argues that its

motion to intervene was timely filed because all factors weigh in its favor. (ECF No. 92 at 9.) First,
Elsevier asserts that it moved promptly to intervene because it did not become aware of this case
until September 2014, and nothing at that time suggested that defendants would not protect its
interests. (Id. at 9-10.) Elsevier further asserts that entry of summary judgment did not alter matters
as the judgment was favorable to Elsevier’s interests and defendants vigorously defended those
interests on appeal. (Id. at 10.) Elsevier asserts that only after this case was remanded did things
change, as its issue of concern was remanded for discovery and trial. (Id.)
The Court disagrees that Elsevier moved promptly to intervene. The Tenth Circuit Court of
Appeals measures delay “from when the movant was on notice that its interests may not be protected
by a party already in the case.” Edmondson, 619 F.3d at 1232 (citing Sierra Club v. Espy, 18 F.3d
1202, 1206 (5th Cir. 1994)). Contrary to plaintiff’s argument, the letter dated September 22, 2014,
provided plaintiff with notice that its interests may not be protected by a party to this case. Although
the letter may not have informed plaintiff that cross motions for summary judgment had been filed,
the letter clearly notifies plaintiff of this lawsuit. As Elsevier asserts, notice of a lawsuit alone is
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insufficient, see id., but, the purpose of that rule is to prevent premature intervention that wastes
judicial resources, see Sierra Club, 18 F.3d at 1206. Here, as Elsevier observes, by the time the
September 22, 2014 letter had been written, the cross motions for summary judgment (which
purportedly contain the offending assumptions that Elsevier’s database was an agency record and
involuntarily submitted) had already been filed. It thus cannot be said that, at that time, Elsevier
could legitimately believe that defendants would protect the interests asserted in the motion to
intervene, when even a cursory review of the docket would have shown that the cross motions for
summary judgment had been filed and the offending assumptions made. Otherwise, rather than
encouraging premature intervention, the Court would be encouraging the art of burying one’s head
in the sand.
Moreover, it is not as if the September 22, 2014 letter misled Elsevier into believing that
defendants would adequately protect the specific interests Elsevier seeks to protect in the motion to
intervene. See Edmondson, 619 F.3d at 1233 (explaining that the relevant interests are those pursued
in the motion to intervene). The letter is utterly silent on how defendants are defending this lawsuit
or the procedural state of this case.2 Instead, the letter asks Elsevier to express its views on the
lawsuits. (See ECF No. 93-4 at 3.) How Elsevier could do so without performing even a cursory
review of this case’s docket is beyond the Court.
Even assuming that the September 22, 2014 letter did not provide notice to Elsevier that
defendants were not adequately protecting its interests, the Court’s entry of summary judgment on

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The Court also does not credit Elsevier’s assertion that by attaching two complaints to the letter,
defendants “seemed to indicate that matters were at a very early stage.” (See ECF No. 92 at 6.) First, a
cursory review of the docket would have shown Elsevier this was not the case. Second, the letter clearly
identified this case by number, name, and district. (See ECF No. 93-4 at 3.) The case number indicated
that this case was filed in 2013, at least nine months before the letter was sent.

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December 23, 2014 categorically did. Although Elsevier asserts that entry of summary judgment did
not alter the state of affairs in this case (ECF No. 92 at 10), in reality, Elsevier does not reasonably
contend otherwise. In fact, Elsevier acknowledges that the Order, granting summary judgment in
defendants favor, operated under the assumption that Elsevier’s submission of its information was
involuntary and the information itself was an agency record. (See id at 2, 11-12.) Moreover, there
is no assertion that Elsevier did not receive notice of the Court’s December 23, 2014 Order. Instead,
Elsevier asserts that it decided to “hold its fire” (id. at 10), even though it knew that the Order was
premised upon assumptions, which, according to Elsevier, did not adequately protect its interests (id.
at 11-15).3 In other words, Elsevier decided to wait and see if the favorable result of the December
23, 2014 Order would persist. That is not the purpose of intervention. See S. Utah Wilderness
Alliance v. Kempthorne, 525 F.3d 966, 971 (10th Cir. 2008) (explaining that a motion to intervene
must be timely “[o]therwise a proposed intervenor might simply wait and see if the trial’s outcome
leaves intervention desirable with its attendant risk of undoing what the trial court has already
done.”) (quotation omitted).
The Court also gives no weight to Elsevier’s assertion that intervening in the appeal of the
December 23, 2014 Order would have posed “inherent difficulties.” (See ECF No. 92 at 10.) Apart
from the fact that Elsevier does not identify any of the purported inherent difficulties that would have
arisen had it sought to intervene on appeal, just because an avenue may be difficult to cross does not

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The Court notes an inherent contradiction in Elsevier’s arguments. On one hand, Elsevier asserts,
when attempting to explain its reasons for not intervening after entry of the December 23, 2014 Order, that
the Order was favorable to its interests from a practical standpoint. (ECF No. 92 at 10.) On the other hand,
Elsevier later asserts, when attempting to explain why its interests might be impaired if it is not allowed to
intervene, that an order in favor of defendants based upon the wrong legal basis could impair Elsevier’s
ability to protect its interests. (See id. at 15.) Much like its conduct in failing to move to intervene
following entry of the December 23, 2014 Order, Elsevier is again trying to have its cake and eat it.

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excuse Elsevier’s failure to even try. Otherwise, a party could pick and choose its occasion to
intervene based upon the assumed ease of success. That cannot be the case. In addition, how can
the Court take seriously Elsevier’s assertions of great prejudice if it is not allowed to intervene, when
Elsevier itself chose not to intervene? As such, the Court disagrees with Elsevier’s assertion that it
“reasonably” decided to hold its fire. (See id.) There was nothing reasonable about Elsevier’s
decision; it was purely a tactical manoeuver.
Elsevier also asserts that the Tenth Circuit’s remand order changed the state of this lawsuit.
(ECF No. 92 at 10.) Again, the Court disagrees. Contrary to Elsevier’s assertion, “the issue of
concern” to it has not been remanded for discovery and trial. (See id.) Presumably, the “issue of
concern” to Elsevier is the reason it gives for intervening—so it can argue that a “database licensed
to a government agency by a party such as [Elsevier] is not an agency record subject to [the Freedom
of Information Act], because it is not under agency control within the meaning of [the Act].” (See
id. at 2.) That issue was certainly not remanded to this Court for discovery and trial. Instead, the
only time that the Tenth Circuit arguably mentioned the issue was in a footnote, where the Circuit
explained that, arguably, Elsevier’s submission of data to defendants was voluntary, but, it was not
necessary to reach that issue because the parties agreed that the submission was involuntary. (See
ECF No. 87 at 10 n.4.)4 Thus, rather than remanding the issue, the Tenth Circuit clearly explained
that the issue was not reached. Put simply, the Tenth Circuit’s remand has changed nothing in this
case in terms of the legal issues before the Court, the only thing that has changed is that factual
disputes exist preventing entry of summary judgment on those legal issues.

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The Court uses the page numbers assigned to the Tenth Circuit’s opinion by the CM/ECF system
in the top right-hand corner of the document.

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In summary, because Elsevier has failed to provide an adequate explanation for why it failed
to intervene after receiving the September 22, 2014 letter, and/or for why it chose to “hold its fire”
after entry of the December 23, 2014 Order, and because nothing has changed in this case, the Court
finds that the first factor of the timeliness inquiry weighs strongly against Elsevier.
The second factor is prejudice to the existing parties. Elsevier asserts that allowing it to
intervene will not cause prejudice to the existing parties because intervention will not disrupt any
schedule or cause any additional expense, and discovery directed at Elsevier will be needed with or
without its intervention. (ECF No. 92 at 10-11.) As Elsevier asserts, prejudice in this respect is
prejudice caused by the movant’s delay. Edmondson, 619 F.3d at 1236. In its reply, Elsevier points
to the prejudice caused by its delay. Specifically, Elsevier concedes that, if allowed to intervene, this
case would be in no different a place than if it had intervened in September 2014. (See ECF No. 105
at 2.) The problem for Elsevier is that it is not 2014 now. In other words, this case has proceeded
far beyond where it was in September 2014; to return it to a procedural state that would otherwise
have been completed is undoubtedly prejudice caused by Elsevier’s delay.
In that regard, the Court gives no weight to Elsevier’s assertion that it is up to the Court
whether Elsevier’s new arguments will require further summary judgment practice or can proceed
directly to trial. (See ECF No. 105 at 2-3.) Although the decision is very much the Court’s, there
is not really a decision to make. If the Court were to allow Elsevier’s arguments to go directly to
trial without being subject to the rigours of summary judgment, the Court would essentially be
rewarding Elsevier for choosing not to intervene in this case when it should have done.
That being said, assessing the degree of prejudice from Elsevier’s failure to intervene sooner
is made more difficult here, given that it is hard to assess how this case would have unfolded had

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Elsevier intervened sooner. In other words, conceivably, the amount of delay caused by the instant
motion to intervene may only be minimally more than any delay that may have been caused if
Elsevier had timely moved to intervene. Although Elsevier should not reap advantage from this selfcreated uncertainty, the Court finds that the prejudice-to-existing-parties factor weighs only slightly
against Elsevier.
The third factor is prejudice to the movant if it is not allowed to intervene. Elsevier asserts
that it will be prejudiced because this case “will continue to proceed down the wrong path” in terms
of whether Elsevier’s information was voluntarily or involuntarily submitted to defendants. (ECF
No. 92 at 11-12.) Elsevier asserts that if this wrong path is taken, defendants will face a heavier
burden of proving exemption under the Freedom of Information Act (“FOIA”). (Id. at 12.) Elsevier
further asserts that its information is not an agency record for purposes of FOIA. (Id. at 12-13.)
Elsevier also asserts that its interests will be harder to protect in other situations if this case is
decided on faulty premises, and a statement in the Tenth Circuit’s order remanding this case “sends
an unfortunate signal to Elsevier’s customers and competitors.” (Id. at 13.)
As for the latter assertion, the Tenth Circuit’s statement—that Elsevier had not intervened
in this case or voiced an objection to disclosure on the record—was an entirely accurate statement.
As such, it cannot be prejudicial to Elsevier, especially when the statement was the result of
Elsevier’s own mistake in failing to intervene sooner. As for the assertion that Elsevier’s interests
will be harder to protect, Elsevier makes no attempt to explain this cryptic foreboding. Thus, the
Court gives it no weight.
This leaves the two legal arguments Elsevier wishes to assert if allowed to intervene. As
mentioned supra, it is difficult to take Elsevier’s assertions entirely at face value given that Elsevier

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was quite happy to have defendants “vigorously” defend its interests on appeal. (See ECF No. 10.)
In any event, Elsevier’s assertions of prejudice are, at best, speculative. First, there is no guarantee
that Elsevier’s argument, that its information was voluntarily submitted, even if accepted, would
produce a result in its favor. Elsevier asserts that, if its information was voluntarily submitted, a
“lower bar” would apply to the Exemption Four analysis because it would only have to prove that
its information would not customarily be released to the public by the person from whom it was
obtained. (See id. at 11-12.) However, the Tenth Circuit observed that it was an “open question”
whether Elsevier could object to disclosure of its information because plaintiff had produced
evidence indicating that the some of the information was available on a public website. (See ECF
No. 87 at 14.) As far as the Court can discern, at best, the inquiry into whether Elsevier’s
information would customarily be released to the public is as fact specific, and thus, uncertain in
light of the limited evidence in the record, as any of the inquiries defendants may pursue to prove
the applicability of Exemption Four. Second, other than asserting that defendants’ arguments in this
regard are subject to a “heavier” burden (see ECF No. 92 at 12), Elsevier offers no non-speculative
explanation for how it may be prejudiced by defendants preceding down the same path they have
trodden throughout this case.
Third, it is equally uncertain whether Elsevier’s argument—that its information is not an
agency record for purposes of FOIA—will succeed. Elsevier’s argument in this regard appears to
rely on an out-of-circuit district court case. (See id. at 13.) As such, even if the facts of that case are
similar to the facts here, there is no reason why this Court must accept its legal test for assessing
whether information is an agency record. Ultimately, as Elsevier concedes, defendants have
vigorously defended Elsevier’s interests so far in this case. The fact that the parameters of

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defendants’ efforts might have been broader does not mean that Elsevier has suffered any meaningful
prejudice. As a result, to the extent this factor weighs in Elsevier’s favor at all, it is only slight.
In summary, while the second and third factors of the timeliness inquiry are in equipoise, in
that they weigh, respectively, slightly against and slightly in favor of Elsevier, the first factor weighs
strongly against Elsevier. The final consideration is whether unusual circumstances weigh in favor
or against intervention. Elsevier’s argument in this regard is that, if this case is decided on the
“faulty premise” of its information being an agency record, any such decision would be “at odds”
with existing precedent and “create commercial uncertainty for all parties nationwide that provide
proprietary data to U.S. Government agencies.” (ECF No. 92 at 13-14.) Put simply, that is wrong.
First, to the extent any final decision in this case assumed that Elsevier’s information was an agency
record, it would not put the same at odds with any other case, given that, here, as Elsevier
acknowledges, the parties have worked under the assumption that the information is an agency
record. As such, there would be no finding of this Court in that regard, and thus, nothing at odds
with any other case. Second, as for “commercial uncertainty,” apart from being an unexplained
statement, for the same reason, it is utterly worthless, given that no binding precedent would be
created by an assumption with respect to an issue that the existing parties did not contest. As a
result, Elsevier’s dark projections do not constitute unusual circumstances that weigh in its favor.
The Court does discern one unusual circumstance in this case. There is a reason why
Elsevier asserted that intervening on appeal of might have “inherent difficulties.” That is because
intervening on appeal, when the entity has not sought to intervene in the district court, is only
allowed “in an exceptional case for imperative reasons.” Pub. Serv. Co. of New Mexico v. Barboan,
857 F.3d 1101, 1113 (10th Cir. 2017) (quotation omitted). In this case, the Court has proceeded with

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respect to the instant motion to intervene on the basis that Rule 24(a) and the timeliness inquiry
apply as if Elsevier had moved to intervene when this case was originally before the Court, i.e.
before an appeal. That, though, is not what happened here, and what makes the procedural posture
of this case an unusual circumstance.
Notably, Elsevier believes that it has avoided having to show an exceptional case and
imperative reasons by waiting for the appeal to end and this case to be remanded. But, really,
Elsevier should be subject to an even stronger standard because Elsevier not only failed to intervene
in the district court originally, but also failed to intervene on appeal. It seems fundamentally
preposterous for Elsevier to be able to reap advantage from its delay-tactics, or for Elsevier to get
a do-over, merely because this case is back before the Court on remand, when, as explained, nothing
has changed other than the need to resolve factual disputes on the pre-existing arguments made by
the parties. Put simply, although the Court has applied a legal standard as if Elsevier had sought to
intervene before the appeal, the Court does not find that to be the case, and finds that Elsevier’s
failure to intervene not once, but twice is an unusual circumstance that weighs against intervention.
As a result, because the Court finds that two factors weigh strongly against intervention,
while two other factors are a wash, the Court finds that the motion to intervene was untimely filed,
and DENIES the same.5
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Although the Court need not address the other parts of the overall Rule 24(a) analysis, the Court
also finds that Elsevier has failed to show that defendants do not adequately represent its interests. Notably,
Elsevier does not make this argument. Instead, Elsevier argues that defendants are “not in a position to
represent Elsevier’s best interests.” (ECF No. 92 at 15-16) (emphasis added). Defendants do not have to
represent Elsevier’s best interests, they need only adequately represent Elsevier’s interests. Here, there is
no evidence that defendants’ representation of Elsevier’s interests has been less than adequate. Moreover,
defendants’ objective in this case is identical to that of Elsevier—to prevent disclosure of information
contained in databases licensed to defendants. See Coal. of Arizona/New Mexico Counties for Stable Econ.
Growth v. Dep’t of Interior, 100 F.3d 837, 844-845 (10th Cir. 1996) (explaining that, although the burden
of showing inadequate representation is “minimal,” “representation is adequate when the objective of the
applicant for intervention is identical to that of one of the parties.”) (quotation and internal quotation
omitted). Here, Elsevier has made no argument that its objective is not identical to defendants’.

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III.

Conclusion
For the reasons discussed herein, the Court DENIES the motion to intervene (ECF No. 92).

SO ORDERED.
DATED this 13th day of July, 2017.

BY THE COURT:

____________________________________
RAYMOND P. MOORE
United States District Judge

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