Jesse Ventura v. Napolitano et al

Filing 22

ORDER THAT: The Motion to Intervene by Third Party American Travelers (Doc. No. 13) is DENIED.(Written Opinion) Signed by Judge Susan Richard Nelson on 7/21/11. (jam)

UNITED STATES DISTRICT COURT
DISTRICT OF MINNESOTA

Governor Jesse Ventura, a/k/a
James G. Janos, individually,

Civil No. 11-174 SRN/AJB

Plaintiff,
ORDER
v.
Janet Napolitano,
Secretary of the Department of
Homeland Security, et al.
Defendants.

Piero A. Bugoni, Pro Se Intervenor, 160 W. Camino Real, #191, Boca Raton FL 33432.
David Bradley Olsen, Henson & Efron, P.A., 220 S. 6th St., Suite 1800, Minneapolis, Minnesota
55402-4503, for Plaintiff
Tony West, Assistant Attorney General; B. Todd Jones, United States Attorney; Tamara L.
Ulrich, U.S. Department of Justice, Civil Division, Federal Programs Branch, P.O. Box 883,
Washington D.C. 20044; Ana H. Voss, Assistant U.S. Attorney, 600 U.S. Courthouse, 300 S.
Fourth Street, Minneapolis, MN 55415; for Defendants
______________________________________________________________________________
SUSAN RICHARD NELSON, United States District Judge
This matter is before the Court on the Motion to Intervene by Third Party movant Piero
A. Bugoni, on behalf of “American Travelers”, a purported Plaintiff Class. (Doc. No. 13.) For
the reasons stated herein, the motion is DENIED.
I.

BACKGROUND
This action was filed by former Governor Jesse Ventura (“Ventura”) against Janet

Napolitano, Secretary of the Department of Homeland Security, the Transportation Security

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Administration (TSA), and the Department of Homeland Security (DHS), seeking a declaration
that the TSA and DHS have violated Ventura’s Fourth Amendment rights by subjecting him to
airport security searches. (Compl. ¶ 6 [Doc. No. 1].) Piero A. Bugoni, on behalf of the
proposed intervenors “American Travelers”, a purported plaintiff class (“Proposed Intervenors”),
seeks permission to intervene in this action. (Mot. Intervene. at 1 [Doc. No. 13.].) Proposed
Intervenors contend that, pursuant to Federal Rule of Civil Procedure 24(a), they have an
unconditional right to intervene in this matter under 42 U.S.C. § 1983. (Id.) Defendants oppose
the motion on the grounds that § 1983 does not give a movant an unconditional right to
intervene, or, in the alternative, that the Proposed Intervenors do not have Article III standing to
intervene. (Opp’n. Mem. at 2 [Doc. No. 15].) Plaintiff Ventura joins in Defendants’ opposition
to the motion. (Id.)
II.

DISCUSSION
Federal Rule of Civil Procedure 24(a) provides that a court must allow intervention of a

party who files a timely motion, if the party:
(1) is given an unconditional right to intervene by a federal statute; or
(2) 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).
Under Rule 24(a)(1), a movant is entitled to intervene if the federal statute at issue
contains explicit language authorizing intervention. For example, language such as “…
any citizen may intervene as a matter of right”, 33 U.S.C. § 1365(b)(1)(B), or “[t]he

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person or persons aggrieved shall have the right to intervene…”, 42 U.S.C. § 2000e5(f)(1), explicitly permits intervention.
In addition to the requirements set forth in the above rule, the moving party must
have Article III standing in order to intervene and litigate their claims in federal court.
Mausolf et. al. v. Babbitt et. al., 85 F.3d 1295, 1300 (8th Cir. 1996). This standing
requirement is a prerequisite for federal jurisdiction and “an unchanging part of the caseor-controversy requirement of Article III.” Lujan v. Defenders of Wildlife, 504 U.S. 555,
560 (1992). If a party were permitted to intervene without standing, it would no longer
be considered an Article III case or controversy and the matter could not be litigated in a
United States court. Mausolf, 85 F.3d at 1300.
Standing requires three elements. First, the moving party must show that it has
suffered a concrete and particularized injury in fact that is actual or imminent, not
conjectural or hypothetical. Lujan, 504 U.S. at 560. Second, the conduct being
challenged must have caused the alleged injury. Id. Third, the moving party must show
that a favorable decision will cure the injury. Id. at 561. A movant who merely states a
generalized grievance and not a personalized injury will not satisfy the injury requirement
of the standing test. See Nolles et. al. v. State Comm. for the Reorg. of Sch. Dists., 524
F.3d 892, 900 (8th Cir. 2008). In Nolles, the plaintiffs brought a civil rights action
against a state committee regarding the reorganization and classification of school
districts. Id. at 896. The court ruled that the plaintiffs’ claim was a generalized
grievance shared by all Nebraska voters and that because they could not establish a
specific, individualized injury, the Plaintiffs lacked standing. Id. at 900.

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Proposed Intervenors seek to intervene in this matter under Rule 24 (a)(1) through
42 U.S.C. § 1983. (Mot. Intervene. at 1.) They contend that they have an unconditional
right to intervene “to secure the Blessings of Liberty and Protect their Individual Rights
to Person, Property, Peace and Dignity, Privacy, Personal Space, and to Be Let Alone.”
(Id.) As the Defendants correctly point out in their response, § 1983 does not contain any
language authorizing an unconditional right to intervene. See 42 U.S.C. § 1983.
Therefore, because the statute at issue in this litigation does not authorize intervention,
Proposed Intervenors do not possess an unconditional right to intervene pursuant to Rule
24 (a)(1).1
As to standing, Proposed Intervenors have not alleged that they have traveled or
plan to travel through an airport and experience the security procedures challenged by
this action. (See Mot. Intervene. at 1.) Further, they have not alleged any particularized
harm caused by the security measures necessary to satisfy the individualized injury
requirement under Nolles. See id; Nolles, 524 F.3d at 900. Because Proposed
Intervenors have not shown that they have suffered an actual or imminent injury, that the
actions of the defendants caused that injury, and that a favorable ruling would redress that
injury, Proposed Intervenors lack Article III standing. See Lujan, 504 U.S. at 560-61.
Because the Proposed Intervenors have not identified any authority permitting
intervention under Rule 24(a)(1) and do not satisfy the Article III standing requirements,
they cannot intervene in this action.

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Because Proposed Intervenors claim a right to intervene solely under Rule
24(a)(1), the court will not address the applicability of intervention under Rules 24(a)(2)
or 24(b), although the Court finds that neither applies here.
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THEREFORE, IT IS HEREBY ORDERED THAT:
The Motion to Intervene by Third Party American Travelers (Doc. No. 13) is DENIED.
Dated: July21, 2011
s/ Susan Richard Nelson_____
SUSAN RICHARD NELSON
United States District Court Judge

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