Memo in Support of Motion to Intervene and to Join Additional Defendant with Certificate of Service and Conference

    UNITED STATES DISTRICT COURT 

NORTHERN DISTRICT OF TEXAS" 

DALLAS DIVISION 

LOIS THOMPSON on behalf of and as next 
friend to TAYLOR KEONDRA DIXON, 
ZACHERY X. WILLIAMS, CALVIN A. 
THOMPSON and PRENTISS LAVELL 
MULLINS, 

Plaintiffs, 

PEOPLE UNITED FOR A BETTER 
OAKLAND, on behalf of its members; 
DENVER ACTION FOR A BETTER 
COMMUNITY, on behalf of its members; 
NEW YORK CITY COALITION TO END 
LEAD POISONING, on behalf of its 
members; ROBIN GOURLEY on behalf of 
and as next friend to BRYAN ALAN 
GOURLEY, WESLEY KYLE GOURLEY, 
BRIDGET MICHELLE GOURLEY, 
LINDA DANIELLE GOURLEY and 
BETSEY IRENE GOURLEY; TEARRAH 
ROBERSON on behalf of and as guardian 
ad litem to JUAN WILKINS; and MARY 
MARIE ROBERSON on behalf of and as 
guardian ad litem to ASHARD MOORE, 
JASON ROLLINS, ASHEA ROBERSON, 
and NASHEIKA ROBERSON, 

Plaintiff-Intervenors, 
Vv. 

BURTON F. RAIFORD, in his capacity as 
Commissioner of the Texas Department of 
Human Services, 

The UNITED STATES OF AMERICA, 

Defendants, 

LOUIS W. SULLIVAN, in his capacity as 
Secretary of the United States Department of 
Health and Human Services, 

Additional Defendant.     

CASE NO. 3-92 CV 1539-R 

Civil Action 

Class Action 

MEMORANDUM IN SUPPORT OF 
MOTIONS TO INTERVENE AND 
TO JOIN ADDITIONAL 
DEFENDANT 

 



    

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TABLE OF CONTENTS 

Page 

INTRODUCTION. ..issernsnernsrasustorssrersosissrsssssssressssmmsisnisrasisrases mins ormsrsroesersasorsrinsorsibosionssor rsstiiioens 1 

STATEMENTL,..ccovsuesnirittrasts ssecsrmvessssomsinsomssmnsssmsncencosssmsaparssssssaiasenssnsrissmr rts sons sncrions se silasinas 1 

ARGUMENT ....:veeuscsnsersnsrarascasasositonsitsssionssssssomssrinnisnnesntrasnsssasirasioss sossssssbimtonsassasssooniodeomemt sen 2 

A. INTERVENTION OF RIGHT SHOULD BE GRANTED.........ccceueuunnnn... 2 

1. The Application for Intervention Is TIMelY.......cumwerrrercnsssrsrsssorsrsresss 2 
2 The Proposed Intervenors Have an Interest in the Subject 

OFRIIE ACHON cient rasnsnsrtsirnsesssrivsirissnsstiresmsmstsserssiserpipminsnssssstarmtossivhsmsinionss 5 
3 The Disposition of the Main Action May Impair or Impede 

Proposed Plaintiff-Intervenors’ Ability to Protect 
IRC IOI ESiS srerr eri curerssssssarisssntmmmssiissssombsssnsnonmuenrismsasass resins sartbstassonsais 5 

4. The Existing Parties Inadequately Protect the Interests of 
Proposed Plaint ii -IlEIVEIIOTS......icemurrsssnnrensnsirensarssersesesssssrssssmsrsasassrison 6 

B. PROPOSED PLAINTIFF-INTERVENORS MEET REQUIREMENTS 
FOR PERMISSIVE INTERVENTION......coconcucnsrdiusrcosmncrsnsnsssrsssorsssososriones 6 

C, THE SECRETARY OF HHS SHOULD BE JOINED AS 
A DEFENDANT ......ciitsersetinsesmronsissrmssmmsiviosmssomisimsssertbssmsssisnsmsss sontrs iareirsisis 7 

CONCLUSION. ..ouseustesensenstos mens tmsasastasssssentsossassastrssanmsmnstsersssssssssinssissssinsins soni iesssossss rset ons sie 9 

 



    

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TABLE OF AUTHORITIES 

Cases Page 

Ass’n of Professional Flight Attendants v. Gibbs, 
804 F.2d 318 (Sth Cir. LT 86 ire rsstrsnssnissssnnsenrsnrteivaneh ennsssonssrmrosntssssesrosiossionssivosnrsmen da i 5 

  

Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir. 1992), 
rely denied, ADIL 21, 1992... ..cvsiivnintessmarsriisentonsessisssmsrsisessssiis stoma rote ree 4,6 

  

  

International Tank Terminals, Ltd. v. M/V Acadia Forest, 
579 F.2d 964 (5th Cir. L978) strrorrsrosesissensinsessennssrsstissnssnsancusesssnecrseronss sosnssrstbsbos ssssensrtimsinse ons 4 

  

New Orleans Public Service Inc., v. United Gas Pipe Line 
Company, 732 F.2d 452 (5th Cir.)(en banc), cert. denied, 
409 LS, 1010108)... erersrsrnssrirersssasishiriosarsssessassisasialons soitioimiiorenssin ce seisiomis ie Sawn 3,6 

  

  

  

  

  

  

Texas v. U.S. Department of Energy, 754 F.2d 550 (5th Cir. 1985).......cceeuueuernerncenenne. 4 

Trbovich v. United Mine Workers, 404. 10.8. S28 (1972)....csrersrsvrscssssrsesnsssssusrivinsnssineasnes 7 

TWA y. Mattox, 712 F.Supp 99 {W.D. Tex, 1080)....cc.cccsmrnsnersesscsisssmsssrsssasssssrssssaisonsmis 4,5 

U.S. v. Texas Eastern Transmission Corp., 923 F.2d 410 
(SULCIH, JOO), covissisesansansansintissiasssstormssnssnselieiinssptssissmmeimsonsomisnenssssncensiorsmsoss sess ssstiammatsonsns 4 

Statutes 

42 1J.S.C. 3 13900(ANANID ec crmiresrussnssrcosssssussmmsmsrmsoncsrat ik sobainassasonsoss ses vesnsssnsonos se hesaisssanns 3 

42 11.8.0. B 13900 mersracensensivnssnastianisonssssssssmsassssvivonsomrmpnsonsinavens asses is nsaasionsossessssssrsones 3 

  

FEA R.CVP. 10(a)ttserrirrrsinsssesssssssssstssissmsssisirrmmminsmmsmsrss possniiasinssesos oor nemesis IE 8,9,10 

FOR CIV P 200) hs csrsssssscsssissensassssiorabivssssspiiiminionsionsoriitio os soe iro SE 9,10 

Fed BR. CIV PNY either istssenientsnisssisssssssimtbommmmsssion sss Rrmss bons saab as 3,4,6,10 

Fed. RiCIVP, ZAI D itssciressestesersssssrsisismetrosossiritisssummssssmnsessarsocniiomsemsos moss cores 7,10 

ii 

 



    

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LL 

Introduction 
  

This litigation concerns inter alia, the failure of federal Medicaid officials to require 

the use of lead blood level assessment tests to screen for lead poisoning, the number one 

environmental health problem for children in the United States today. Leave to file Plaintiffs’ 

Second Amended Complaint was granted on September 8, 1992. The Second Amended 

Complaint pleads a nationwide class action on behalf of all Medicaid-eligible children in the 

United States. Plaintiff-intervenors, organizations and individuals from California, Colorado, 

New York, and North Carolina, include parents and guardians of Medicaid-eligible children 

who are denied or threatened with denial of lead blood level assessment tests, and they seek 

to intervene to join this aspect of the litigation. Their participation will enhance plaintiffs’ 

ability to obtain and to prosecute a class action that will further the interests of members of 

the organizational plaintiff-intervenors, the parent/guardian plaintiff-intervenors, and their 

children in preventing lead poisoning. Plaintiff-intervenors also seek to join an additional 

defendant. 

IL. 

Statement 

The Second Amended Complaint, containing allegations against the United States for 

the failure of the United States Department of Health and Human Services ("HHS") to 

require lead blood level assessment testing under the Medicaid program, was filed on 

September 8, 1992. The Second Amended Complaint alleges that the conduct of the United 

States in HHS’ administration of the Medicaid program adversely affects a class of all 

Medicaid-eligible children. A motion to certify a nationwide class is pending. 

The United States has not filed an answer. 

The complaint in intervention is filed by People United for a better Oakland 

("PUEBLO"), Denver Action for a Better Community ("ABC"), and New York City Coalition 

 



    

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to End Lead Poisoning ("NYCCELP") --- organizations that advocate adequate screening for 

lead poisoning and whose members include parents and guardians of Medicaid-eligible 

children from California, Colorado, and New York --- and on behalf of Medicaid-eligible 

children from North Carolina. The complaint in intervention alleges that defendant United 

States, through the actions of additional defendant Louis W. Sullivan, Secretary of HHS, has 

violated the Medicaid Act, 42 U.S.C. § 1396d(r)(1), by failing to require the States to use lead 

blood level assessments required by the Early Periodic Screening, Diagnostic and Treatment 

("EPSDT") program. Instead, federal defendants permit the States to use the erythrocyte 

protoporphyrin ("EP") test, a test which does not assess lead blood levels and which defendant 

Sullivan since 1988 has recognized as unreliable to detect blood poisoning at levels requiring 

medical intervention. 

Plaintiff-intervenors’ counsel wrote a letter to defendant Sullivan requesting that lead 

blood level tests be required, but defendant Sullivan refused. See Complaint In Intervention, 

Attachments A & B. 

III. 

Argument 

A. Intervention of Right Should Be Granted. 
  

Fed.R.Civ.P. 24(a)(2) provides: 

Upon timely application, anyone shall be permitted to intervene 

in an action: ... when the applicant claims an interest relating 

to the property or transaction which is the subject of the action 

and the applicant is so situated that the disposition of the action 

may as a practical matter impair or impede the applicant’s ability 

to protect that interest, unless the applicant’s interest is 

adequately represented by existing parties. 

The Fifth Circuit’s standard with respect to intervention of right where no federal 

 



    

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statute confers an unconditional right to intervene was established in New Orleans Public 

Service, Inc. v. United Gas Pipe Line Company ("NOPSI"), 732 F.2d 452 (5th Cir.) (en banc), 

cert. denied, 469 U.S. 1019 (1984). There, the Circuit reiterated ite holding in International 

Tank Terminals, Ltd. v. M/V Acadia Forest ("International Tank"), 579 F.2d 964, 967 (5th Cir. 

1978), stating: "It is well-settled that to intervene as of right each of the four requirements 

of the rule must be met: 

(1) the application for intervention must be timely; (2) the 

applicant must have an interest relating to the property or 

transaction which is the subject of the action; (3) the applicant 

must be so situated that the disposition of the action may, as a 

practical matter, impair or impede his ability to protect that 

interest; (4) the applicant’s interest must be inadequately 

represented by the existing parties to the suit. 

NOPSI, 732 F.2d at 463, citing International Tank. The NOPSI standard is a common starting 

point for Fifth Circuit cases dealing with intervention, see Ceres Gulf v. Cooper ("Ceres Gulf"), 

957 F.2d 1199, 1203 (5th Cir. 1992) reh’s denied April 21, 1992; U.S. v. Texas Eastern 

Transmission Corp., 923 F.2d 410, 413 (5th Cir. 1991); Texas v. U.S. Department of Energy, 754 

F.2d 550 (Sth Cir. 1985); TWA v. Mattox ("TWA"), 712 F.Supp 99 (W.D. Tex. 1989) aff'd 897 

F.2d 773 (5th Cir. 1990), cert. denied, 111 S.Ct.307(1990). 

1. The Application for Intervention Is Timely. 
  

Fed.R.Civ.P. 24(a)(2) requires that an application for intervention be timely. The four 

factors relevant to the timeliness determination in the Fifth Circuit are: 

(a) the length of time the would-be intervenors actually knew or reasonably should 

have known of their interest in the case before petitioning for leave to 

intervene; 

(b) the extent of the prejudice existing parties to the litigation may suffer as a 

 



    

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& 
result of the would-be intervenors’ failure to apply for intervention as soon as 

they actually knew or reasonably should have known of their interest in the 

case; | 

© the extent of the prejudice the would-be intervenors may suffer if leave to 

intervene is denied; and 

(d) the existence of unusual circumstances militating either for or against a 

determination that the application is untimely. 

Ass’n of Professional Flight Attendants v. Gibbs, 804 F.2d 318, 320-21 (Sth Cir. 1986), citing 

Stallworth v. Monsanto Co., 558 F.2d 257, 264-66 (Sth Cir. 1977); see TWA, 712 F.Supp. at 103 

(W.D. Tex. 1989). 

In the instant intervention, the proposed plaintiff-intervenors, through their counsel, 

learned of the nationwide class scope of the case a short time after plaintiffs filed their second 

amended complaint. The existing parties will suffer little or no prejudice because the 

proposed intervenors have moved to intervene with minimum delay. Federal defendants have 

not answered and proposed intervenors allege the same essential claims as plaintiffs. The 

mandamus claim against additional defendant HHS Secretary Sullivan merely identifies the 

specific official of original federal defendant United States who is responsible for the conduct 

being challenged. 

On the other hand, proposed intervenors would suffer if leave to intervene is denied 

because class certification is less likely to be granted and they will not be able to strengthen 

the prosecution of their claims by participating as intervenors. As the parent/guardian and 

organizational intervenors merely seek to join a proposed nationwide class action which 

includes their members’ Medicaid-eligible children, their actions will not cause any delay in 

the case and thus militate for a determination of timeliness. Any minimal delay in 

intervention that has occurred should, moreover, be excused because of the special 

circumstance that intervenors reside in California, Colorado, New York and North Carolina. 

 



  

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2. The Proposed Intervenors Have an Interest in the Subject of the Action. 
  

Pursuant to Fed.R.Civ.P. 24(a)(2), an intervenor must demonstrate "an interest relating 

to the property or transaction which is the subject of the action." The Fifth Circuit requires 

that an applicant for intervention demonstrate a "direct, substantial, legally protectable interest 

in the proceedings." NOPSI, 732 F.2d at 463. The potential intervenor need not "be legally 

bound by the result of the main case, nor need his interest be identical to those claims 

asserted in the main action." Id. 

The proposed plaintiff-intervenors are individuals and member parents and guardians 

of Medicaid-eligible children whose right to obtain a lead blood level assessment for lead 

poisoning under the EPSDT program is plainly affected by the litigation as is the advocacy 

of plaintiff-intervenor organizations themselves. Additionally, the Medicaid-eligible children 

of parent/guardian plaintiff-intervenors have been denied proper testing. 

3. The Disposition of the Main Action May Impair or Impede Proposed Plaintiff- 
  

Intervenors’ Ability to Protect Their Interests. 
  

The Fifth Circuit requires applicants for intervention of right to establish that the 

disposition of the main action may impair or impede their ability to protect their interest in 

the subject matter of the action. Again, the court focuses on the practical implications or 

impediments that will prevent the intervenor from protecting his interests. See Ceres Gulf, 957 

F.2d at 1203-1204. 

Denial of intervention deprives the court of a broader representation of the proposed 

class’ interests. Denying plaintiff-intervenors’ participation may impair or impede their ability 

to obtain lead blood level assessments to screen for lead poisoning. Intervention will permit 

plaintiff-intervenor individuals and organizations’ members, as members of the proposed 

plaintiff class, to protect directly their interest in obtaining the screening for lead poisoning 

required by the Medicaid Act and dictated by the Centers for Disease Control. 

I 

 



    

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4, The Existing Parties Inadequately Protect the Interests of Proposed Plaintiff- 
  

Intervenors 
  

Would-be intervenors must make a minimal showing that existing parties to the 

litigation inadequately represent their interests. Trbovich v. United Mine Workers, 404 U.S. 

528, 538 n.10 (1972). In this case, plaintiffs are an individual guardian and Medicaid-eligible 

children from the State of Texas. Proposed plaintiff-intervenors are both Medicaid-eligible 

individuals and advocacy organizations from several states representing member parents and 

guardians of Medicaid-eligible children, all of whom seek to obtain effective screening for lead 

poisoning for Medicaid-eligible children. The member parents and guardians of PUEBLO 

and ABC seek to safeguard lead blood level assessment testing previously won through 

litigation. NYCCELP made groundbreaking law in this area almost six years ago. Plaintiff- 

intervenors’ counsel include the NAACP Legal Defense and Educational Fund, Inc., the 

National Health Law Program of the Legal Services Corporation, and the Bronx, New York 

and North Carolina Legal Services offices. The interests of proposed plaintiff-intervenors, in 

short, are not identical with those of plaintiffs and, therefore, are not adequately represented 

by plaintiffs. 

B. Proposed Plaintiff-Intervenors Meet the Requirements for Permissive Intervention. 
  

Fed.R.Civ.P. 24(b)(2) states, in relevant part: 

Upon timely application, anyone may be permitted to intervene 

in an action: . . . when an applicant’s claim or defense and the 

main action have a question of law or fact in common. . . . In 

exercising its discretion, the court shall consider whether the 

intervention will unduly delay or prejudice the adjudication of 

the rights of the original parties. 

Whether to permit permissive intervention is within the court’s sound discretion. In 

considering whether to permit intervention, the court looks at the timeliness of the application 

 



    

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for intervention, whether the intervenor’s interests relate to common questions of law or fact, 

and whether intervention will unduly delay the case or prejudice the original parties. 

As discussed above, the intervention is timely filed. Plaintiff-intervenors and plaintiffs 

have similar interests in obtaining the effective screening for lead poisoning required by the 

Medicaid Act and the Centers for Disease Control, and the intervention should not unduly 

delay the case or prejudice the original parties because no new claims are being raised. 

Rather, it should strengthen plaintiffs’ class claims and prosecution of the claims against the 

federal defendants. In considering the nationwide scope of the class claims asserted in this 

litigation, the Court may well find the contribution of intervenor individuals and organizations 

and their counsel useful. 

Thus, if leave to intervene as of right is not granted, plaintiff-intervenors should be 

granted permissive intervention. 

C. The Secretoly of HHS Should Be Joined as a Defendant 
  

Fed.R.Civ.P. 19(a) requires that a person be joined as a party if he is subject to service 

of process and if his joinder will not deprive the court of jurisdiction over the subject matter 

of the action where: 

(1) in the person’s absence complete relief cannot be accorded among 

those already parties, or (2) the person claims an interest relating to the 

subject of the action and is so situated that the disposition of the action 

in the person’s absence may (i) as a practical matter impair or impede 

the person’s ability to protect that interest or (ii) leave any of the 

persons already parties subject to a substantial risk of incurring double, 

multiple, or otherwise inconsistent obligations by reason of the claimed 

interest. If the person has not been so joined, the court shall order that 

the person be made a party. If the person should join as a plaintiff but 

refuses to do so, the person may be made a defendant, or, in a proper 

 



    

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case, an involuntary plaintiff. If the joined party objects to venue and 

joinder of that party would render the venue of the action improper, 

that party shall be dismissed from the action. 

Louis W. Sullivan, the Secretary of HHS, should be joined as an additional federal 

defendant in this action. Under the Medicaid Act, Secretary Sullivan is the official charged 

with administering the Medicaid EPSDT program on behalf of defendant United States, thus, 

his actions are challenged herein. The parties to this action, therefore, may be unable to 

obtain adequate relief without his joinder. Both plaintiffs and proposed plaintiff-intervenors 

essentially seek to mandate defendant Sullivan’s compliance with the Medicaid Act. 

Moreover, because his actions are at the heart of the pending dispute, defendant Sullivan has 

a direct interest in the litigation. In this action, where plaintiffs and proposed plaintiff- 

intervenors seek to represent a nationwide class, it is particularly important to include 

defendant Sullivan in this action, as his presence here may avoid the need for duplicative 

litigation in the future. 

The proposed plaintiff-intervenors note further that defendant Sullivan’s joinder is 

clearly feasible. Defendant Sullivan is subject to service of process, his joinder will not 

deprive the court of jurisdiction over the subject matter of this action, and his joinder will in 

no way delay resolution of the pending action. To the contrary, joinder of defendant Sullivan 

should facilitate a final resolution of the lead blood testing controversy. 

Even if the court were to find that compulsory joinder pursuant to Fed.R.Civ.P. 19(a) 

were not proper, it may still allow permissive joinder of the Secretary pursuant to Fed.R.Civ.P. 

20(a). Rule 20(a) permits the court to join a person as a defendant "if there is asserted 

against them . . . any right to relief in respect of or arising out of the same transaction, 

occurrence, or series of transactions or occurrences and if any question of law or fact common 

to all defendants will arise in the action." As discussed above, joinder of defendant Sullivan 

will merely identify the specific official of original federal defendant United States who is 

 



  

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responsible for the conduct being challenged, thus, the relief requested and the questions of 

law and fact relating to each federal defendant are the same. 

In sum, proposed plaintiff-intervenors contend that compulsory joinder of defendant 

Sullivan as an additional defendant is appropriate. In the alternative, we urge the court to 

permit joinder of defendant Sullivan to this action. 

IV. 

Conclusion 
  

Proposed plaintiff-intervenors meet the criteria of both Fed.R.Civ.P. 24(a) for 

intervention as of right and Fed.R.Civ.P. 24(b) for permissive intervention, therefore, the 

Court should grant our motion to intervene. In addition, proposed plaintiff-intervenors 

respectfully submit that the compulsory joinder of the Secretary of HHS as an additional 

defendant is appropriate pursuant to Fed.R.Civ.P. 19(a) or, in the alternative, that permissive 

joinder should be granted pursuant to Fed.R.Civ.P. 20(a). 

Dated: October 21, 1992 

Respectfully submitted, 

Edward B. Cloutman, III 
Law Office of Edward B. Cloutman, III 
3301 Elm Street 
Dallas, TX 75226 
(214) 939-9222 

Julius L. Chambers 
Alice Brown 

NAACP Legal Defense & Educational Fund, Inc. 
99 Hudson Street, Suite 1600 
New York, NY 10013 

Bill Lann Lee 
Kirsten D. Levingston 
NAACP Legal Defense & Educational Fund, Inc. 
315 West Ninth Street, Suite 208 
Los Angeles, CA 90015 

Jane Perkins 

 



    

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National Health Law Program 
1815 H Street, N.W. 
Suite 705 
Washington, DC 20006 
(202) 887-5310 

Carlene NcNulty 
North State Legal Services 
114 West Corbin Street 
Hillsborough, N.C. 27278 
(919) 732-8137 

Lucy Billings 
Marie-Elena Ruffo 
Bronx Legal Services 
579 Courtlandt Avenue 
Bronx, N.Y. 10451 
(212) 993-6250 

  

soni B. Cloutman, AA. u 
is SE 441 al 

  

fina Lee 
Ato for Ss 
PUEBLO, ABC, NYCCELP, and 
plaintiff-intervenors 

10 

individual 

 



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CERTIFICATE OF CONFERENCE 
  

I certify that a conference was held with counsel for defendant United States of 
America, Alina S. Kofsky, Esq., on the issues of intervention and joinder raised in the foregoing 
Motions. Counsel for the United States authorized me to represent that she opposes the 
Motions. I further certify that a conference was attempted with Edwin N. Horne, Esq., counsel 
for defendant Burton F. Raiford, however, counsel was unavailable. Finally, I certify that a 
conference was held with Michael M. Daniel, Esq., counsel for plaintiffs, and that he agrees 
with the Motions. 

  

Ladle] (cing 
Kirsten D. Levingston_/ 

CERTIFICATE OF SERVICE 
  

Undersigned counsel for proposed plaintiff-intervenors certifies that copies of the Notice 
of Motions, Memorandum in Support of Motions, and Proposed Orders were served on counsel 
for the parties by telefacsimile and by United States mail, first class postage prepaid, to: 

This 21st day of October, 1992. 

Michael M. Daniel, P.C. 

3301 Elm Street 

Dallas, TX 75226-1637 

(214) 939-9229 (telefacsimile) 

Edwin N. Horne 
Assistant Attorney General 
General Litigation Division 
P.O. Box 12548 
Capital Station 
Austin, TX 78711-2548 
(512) 447-0511 (telefacsimile) 

Alina S. Kofsky 
Sheila Lieber 
Department of Justice 
Federal Programs Branch, Civil Division 

901 E Street, N.W. 
Washington, D.C. 20530 
(202) 616-8470 (telefacsimile) 

AN IL Luger 
Fasten D. Levingston /