Has the Bowsher Doctrine Solved the Debate: The Relationship between Standing and Intervention as of Right

Notre Dame Law Review Volume 84 | Issue 3 Article 8 3-1-2009 Has the Bowsher Doctrine Solved the Debate: The Relationship between Standing and Intervention as of Right Elizabeth Zwickert Timmermans Follow this and additional works at: http://scholarship.law.nd.edu/ndlr Recommended Citation Elizabeth Z. Timmermans, Has the Bowsher Doctrine Solved the Debate: The Relationship between Standing and Intervention as of Right, 84 Notre Dame L. Rev. 1411 (2009). Available at: http://scholarship.law.nd.edu/ndlr/vol84/iss3/8 This Note is brought to you for free and open access by NDLScholarship. It has been accepted for inclusion in Notre Dame Law Review by an authorized administrator of NDLScholarship. For more information, please contact . HAS THE BOWSHER DOCTRINE SOLVED THE DEBATE?: THE RELATIONSHIP BETWEEN STANDING AND INTERVENTION AS OF RIGHT Elizabeth Zwickert Timmermans* INTRODUCTION Pursuant to the Rules Enabling Act of 1934,1 Congress delegated its rulemaking power to the Supreme Court in order to unify the procedural rules governing the federal judiciary. 2 With this delegated authority, the Supreme Court developed the Federal Rules of Civil Procedure, which "govern the procedure in all civil actions and proceedings in the United States district courts" and are "construed and administered to secure the just, speedy, and inexpensive determination of every action."3 Thus, when regulating judicial proceedings, courts apply the Rules with an eye toward achieving these objectives. However, the goals of facilitating fair, expedient, and inexpensive judicial actions must be interpreted in light of constitutional conditions such as the "case" and "controversy" requirements of Article 1114-for "it is axiomatic that the Federal Rules of Civil Procedure do '5 not create or withdraw federal jurisdiction. Candidate for Juris Doctor, Notre Dame Law School, 2009; B.A., Psychology, University of Notre Dame, 2004. I would like to thank Professors Lloyd Mayer and Jay Tidmarsh for their assistance with this Note, as well as the entire editorial board and staff of the Notre Dame Law Review for their diligence and hard work. I would like to extend a heartfelt thank you to my family, particularly my husband, who encouraged me to see this Note through to the end. 1 28 U.S.C. §§ 2071-2077 (2006). 2 See 1JAMEs WM. MOORE ET AL., MOORE'S FEDERAL PRACTICE § 1.04[1] [a], at 1-9 (Daniel R. Coquillette et al. eds., 3d ed. 2007). 3 FED. R. CIv. P. 1. 4 See U.S. CONST. art. III, § 2. * 5 Owen Equip. & Erection Co. v. Kroger, 437 U.S. 365, 370 (1978); see also FED. R. CIv. P. 82 ("These rules do not extend or limit the jurisdiction of the district courts or the venue of actions in those courts."). 1412 NOTRE DAME LAW REVIEW [VOL. 84:3 Intervention as of right pursuant to Rule 24(a) has created tension between the Federal Rules and Article III standing requirements as the circuit courts have struggled to clearly delineate the respective interests required to participate in a lawsuit. The circuits continue to disagree whether the interest required to confer Article III standing is greater, less than, or equivalent to the interest required to intervene in a dispute. Some courts recognize that, pragmatically, the interests required for standing and intervention are usually "equivalent. '6 In certain cases, however, the interests do not overlap. In this situation, a majority of courts argue that the interest required for intervention is not as weighty as the interest required for standing because once an Article III case or controversy has been established between the original parties, jurisdiction cannot be destroyed by an intervening party who does not possess a standing interest in the dispute. In contrast, a minority of courts asserts that because the intervenor wants to become a "suitor" and act on "equal footing" with the original parties, Article III requirements are not met unless the intervenor has an interest that would be sufficient to bring an independent claim in federal court. Although the Supreme Court recognized in 1986 that the circuit courts were struggling with this issue, it has declined to resolve the dispute. 7 During that same Term, the Court developed what has become known as the Bowshe 8 doctrine, which stands for the proposition that a court will not analyze whether each individual party has standing to bring a claim, but will only ensure that one of the moving parties can meet the standing requirements. 9 In 2003, the Court extended the Bowsher doctrine to encompass potential Rule 24(a) intervenors, yet set an interesting limit on the doctrine in relation to intervention. 10 This Note examines the implications of the extension of the Bowsher doctrine to intervention as of right. Additionally, this Note challenges the bright-line positions of the circuit courts and suggests a method of dealing with intervention and standing that examines the relative posture of the potential intervenor-bringing a claim or protecting an interest that is new or is already presented by a same-side 6 The use of the term "equivalent" throughout this Note does not take the meaning "exactly the same," but rather reflects the pragmatic recognition by some courts that the interests of standing and intervention overlap so substantially that satisfying one interest will almost always satisfy the other, making the intervention/standing dilemma a nonissue except in very rare cases. 7 See Diamond v. Charles, 476 U.S. 54, 68-69 (1986). 8 Bowsher v. Synar, 478 U.S. 714 (1986). 9 See id. at 721. 10 See McConnell v. FEC, 540 U.S. 93, 233 (2003). 2009) STANDING AND INTERVENTION AS OF RIGHT 1413 party with Article III standing-and embraces the goals of both intervention and standing. The Note concludes that with the extension of the Bowsher doctrine, the overlap of interests that satisfy both standing and intervention as of right requirements, and the distinction between bringing a claim and protecting an interest, standing is only relevant for those individuals seeking to bring new claims before the court and who therefore create mini-trials that have Article III implications. Part I of this Note examines Rule 24(a) (2) intervention as of right. Part II briefly reviews the Article III requirements of standing to be heard before a federal court. Part III summarizes the few Supreme Court cases that explore the relationship between standing and intervention. Part IV analyzes the three main positions of the circuit courts and the responses of various commentators. Finally, Part V reexamines the relationship between standing and intervention in light of the Court's relatively recent expansion of the Bowsher doctrine and analyzes what types of intervention remain problematic to the notion of an Article III case or controversy. I. INTERVENTION AS OF RIGHT Rule 24 of the Federal Rules of Civil Procedure is a self-help measure allowing absentees to protect themselves when they have questions of (...truncated)