WAGNER et al v. FEDERAL ELECTION COMMISSION

Filing 24

MEMORANDUM OPINION regarding 23 ORDER denying Motion to Intervene. Signed by Judge James E. Boasberg on 3/1/2012. (lcjeb3)

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

WENDY E. WAGNER, et al.,
Plaintiffs,
v.

Civil Action No. 11-1841 (JEB)

FEDERAL ELECTION COMMISSION,
Defendant.

MEMORANDUM OPINION
On October 19, 2011, Plaintiffs, who are federal contractors, filed this action against the
Federal Election Commission, challenging as unconstitutional the portion of 2 U.S.C. § 441c that
bars individuals who have government contracts from making contributions in connection with
elections for federal office. The parties are currently briefing Plaintiff’s Motion for Preliminary
Injunction. About two weeks ago, would-be Intervenor Steve Schonberg filed a Motion to
Intervene, asserting intervention as of right under Fed. R. Civ. P. 24(a)(2). See Memo. at 15
(claiming only intervention as of right). As he has failed to satisfy several of the requirements of
that Rule, the Court will deny the Motion.
I. Legal Standard
Rule 24(a)(2) permits anyone to intervene who “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.” Put another way, “a party seeking to intervene as of
right must satisfy four requirements: 1) the application to intervene must be timely, 2) the party
must have an interest relating to the property or transaction which is the subject of the action, 3)
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the party must be so situated that the disposition of the action may, as a practical matter, impair
or impede the party's ability to protect that interest, and 4) the party's interest must not be
adequately represented by existing parties to the action.” Building and Const. Trades Dept.,
AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (citation omitted).
II. Analysis
In this case, Intervenor fails three of the four tests, clearing only the timeliness hurdle.
As to Intervenor’s interest, “Rule 24(a)(2) requires the intervenor to demonstrate ‘an interest
relating to the property or transaction which is the subject of the action.’ The rule impliedly
refers not to any interest the applicant can put forward, but only to a legally protectable one.”
Southern Christian Leadership Conf. v. Kelley, 747 F.2d 777, 779 (D.C. Cir. 1984) (emphasis
original). In other words, “we have held that because an intervenor participates on equal footing
with the original parties to a suit, a movant for leave to intervene under Rule 24(a)(2) must
satisfy the same Article III standing requirements as original parties.” Building and Const.
Trades Dept., 40 F.3d at 1282 (citations omitted).
Intervenor here cannot establish that he has standing. Plaintiffs’ suit challenges limits on
federal contractors’ contributions; indeed, all three Plaintiffs are, in fact, federal contractors who
claim to have suffered an injury by their inability to contribute. Intervenor, by contrast, never
alleges that he is a federal contractor or is otherwise injured in any way by this law that prevents
contractor contributions. He thus would have no standing to intervene as a plaintiff here. See
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992) (to have standing, party “must have
suffered an ‘injury in fact’ – an invasion of a legally-protected interest which is (a) concrete and
particularized . . . and (b) ‘actual or imminent, not “conjectural” or “hypothetical”’”) (citations
omitted).

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Should he be seeking to intervene as a defendant, the Court can look to the third factor –
namely, whether disposition of this matter would impair Intervenor’s ability to protect his
interest. Intervenor’s position here is that the entire statute should be declared unconstitutional,
not that there is any particular infirmity with § 441c. See Memo. at 2-3, 8-12. That broader
issue will not be decided here; Intervenor, accordingly, will have the ability, regardless of what
occurs here, to bring such a challenge at a future date. Disposition of this matter, therefore,
would not impair his ability to protect his interest.
Finally, the fourth test regarding adequacy of representation is met. To the extent
Intervenor is concerned about § 441c, the FEC will aggressively defend the constitutionality of
that section here, and Intervenor has not shown he could add anything of substance to its
arguments. While Intervenor asserts that this is a “friendly lawsuit” and that a finding of
unconstitutionality would somehow benefit the FEC, see id. at 12, such claims are wholly
speculative and without foundation. Intervenor has thus not carried his burden of showing
inadequate representation, even though such burden is not “onerous.” Dimond v. District of
Columbia, 792 F.2d 179, 192 (D.C. Cir. 1986).
Since Intervenor has not satisfied the requirements of Rule 24(a)(2), he should not be
permitted to intervene as of right. He never seeks, furthermore, permissive intervention under
Rule 24(b).
The Court should also note, as Plaintiffs correctly point out, that Intervenor has failed to
comply with Rule 24(c), which requires that a motion to intervene be “accompanied by a
pleading that sets out the claim or defense for which intervention is sought.” Intervenor has
attached neither a proposed Complaint nor a proposed Answer or other responsive pleading to

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his Motion, thus violating the Rule. This would stand as an independent ground for denial of his
Motion.
III. Conclusion
The Court, accordingly, will issue a contemporaneous Order denying Intervenor’s
Motion.
/s/ James E. Boasberg
JAMES E. BOASBERG
United States District Judge
Date: March 1, 2012

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