MAIL TRANSPORTATION, INC. et al v. USA

Filing 48

UNREPORTED ORDER granting 22 Motion to Intervene; ( Status Report due by 8/7/2017). Signed by Judge Victor J. Wolski. (jad) Copy to parties.

In the United States Court of Federal Claims
No. 17-934C
(Filed August 4, 2017)
NOT FOR PUBLICATION
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MAIL TRANSPORTATION, INC., *
et al.,
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Plaintiffs,
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v.
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THE UNITED STATES,
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Defendant.
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ORDER
The American Postal Workers Union, AFL-CIO (APWU or the Union) has
moved to intervene, pursuant to Rule 24(a)(2) of the Rules of the United States
Court of Federal Claims (RCFC), in this bid protest brought by eighteen contractors
which deliver mail for the United States Postal Service (Postal Service). The
plaintiffs seek to enjoin the Postal Service’s contemplated termination of 110
contracts for the delivery of mail. The Postal Service intends to terminate these
contracts because, as a result of labor dispute between it and the APWU, an
arbitrator has ordered that 110 contract routes be in-sourced for mail delivery by
Postal Service employees for a period of 4 years. The Union seeks to intervene to
defend the implementation of its arbitration award.
Defendant does not oppose the motion for intervention. The plaintiffs object,
however, arguing that the Union does not have a “legally protectable interest”
entitling it to intervention as of right under RCFC 24(a)(2), because it is not an
“interested party” under 28 U.S.C. § 1491(b), for purposes protesting the challenged
procurement decision. Pls.’ Opp’n to APWU’s Mot. at 2 (citing Am. Fed'n of Gov't
Employees, AFL-CIO v. United States, 258 F.3d 1294, 1297 (Fed. Cir. 2001)). The
plaintiffs also contend that defendant will adequately represent the Union’s
interest, further undermining the case for intervention. Id. at 3.

Under RCFC 24(a)(2), a movant must be permitted to intervene when the
movant “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.” The Federal Circuit has distilled these
requirements into a four-part test for determining if intervention as of right is
warranted under RCFC 24(a)(2). See Wolfsen Land & Cattle Co. v. Pac. Coast Fed'n
of Fishermen's Associations, 695 F.3d 1310, 1315 (Fed. Cir. 2012) (citing Am. Mar.
Transp., Inc. v. United States¸870 F.2d 1559, 1560–62 (Fed. Cir. 1989)). First, the
request must be timely. Id. Second, the party seeking to intervene must have a
legally protected interest in the subject of the litigation. Id. Third, the relationship
of the litigation to the putative intervenor’s interest must be “of such a direct and
immediate character that the intervenor will either gain or lose by the direct legal
operation and effect of the judgment.” Id. (citations and emphasis omitted). And
finally, the would-be intervenor’s interests must not be adequately protected by the
other parties to the litigation. Id. In this case, the timeliness of the Union’s motion
is not disputed.
Although the plaintiffs are correct that the Union would not have standing to
protest a Postal Service decision to contract out mail delivery services, that is
irrelevant to the question of whether or not the Union claims an “interest relating
to the property or transaction that is the subject of the action,” RCFC 24(a)(2),
which is legally protectable. Plainly, the Union has such an interest because it
seeks, in substance, to prevent the award it received in arbitration from being
obstructed by the issuance of an injunction. Nor can it be disputed that such an
interest is legally protectable, as the APWU’s arbitration award is enforceable in a
United States District Court. See 9 U.S.C. § 9. Courts have recognized the right of
unions to intervene in cases in which a remedy could interfere with their members’
rights under a collective bargaining agreement, see e.g. United States v. City of Los
Angeles, Cal., 288 F.3d 391, 400 (9th Cir. 2002); or with the union’s ability to
vindicate its rights through arbitration, Taylor v. Sw. Bell Tel. Co., 251 F.3d 735,
741 (8th Cir. 2001).
Moreover, the standing to bring an action in the first instance is not required
of a party seeking to intervene in that action. See Trbovich v. United Mine Workers
of Am., 404 U.S. 528, 537–39 (1972) (permitting intervention by member of labor
union in action that could only be initiated by Secretary of Labor). In the context of
this case, it is particularly irrelevant that the Union could not have filed a bid
protest in its own right because its only interest in this action is a defensive one,
namely the preservation of its arbitration award. Cf. Klamath Irr. Dist. v. United
States, 64 Fed. Cl. 328, 331 (2005) (granting intervention as of right to group of
commercial fishermen claiming the right to use water at issue in a takings action).

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The final requirement for intervention, the inadequate protection of the
movant’s rights by other parties, poses a “minimal” burden, Trbovich, 404 U.S. at
538 n.10, which is easily met in this case. Not only were defendant and the Union
adverse parties in the arbitration proceedings, but their financial interests diverge
to the extent that the plaintiffs are correct that mail service is less costly under
their contracts.
Accordingly, the APWU’s motion to intervene is GRANTED. The parties,
including intervenor, shall file a joint status report on or by Monday, August 7,
2017, proposing a schedule for further proceedings.
IT IS SO ORDERED.
s/ Victor J. Wolski
VICTOR J. WOLSKI
Judge

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