Defendant USA’s Opposition to PUEBLO, ABC, NYYCELP and Individual Proposed Plaintiffs' Motion to Intervene and Memo in Support with Certificate of Service

    “ » fol 

  

CIVIL ACTION NO. CA3-92-~1539~-R 

  

IN THE UNITED STATES DISTRICT COURT 

FOR THE 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, 

Ve 

BURTON F. RAIFORD, in his 

capacity as Commissioner of 
the Texas Department of Human Services, 

and 

THE UNITED STATES OF AMERICA, 

Defendants. 

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT 

  

OF COUNSEL: STUART M. GERSON 
Assistant Attorney General 

HENRY R. GOLDBERG, 

Deputy Chief Counsel 
for Litigation 

DAVID V. PEERY, Attorney 
HELAINE FINGOLD, Attorney 

Office of the General Counsel 
Department of Health and Human 

Services 
Room 500, East Highrise Building 
6325 Security Boulevard 
Baltimore, MD 21207 
(410) 965-8871 

MARVIN COLLINS 

United States Attorney 
MARY ANN MOORE 

Assistant United States 
Attorney 

SHEILA LIEBER 
ALINA S. KOFSKY 
Attorneys, Department of Justice 
Federal Programs Branch, Civil 

Division 
901 E Street, N.W., Room 1010 
Washington, D.C. 20530 
(202) 514-4523 

ATTORNEYS FOR DEFENDANT 

UNITED STATES OF AMERICA 

 



  

TABLE OF CONTENTS 
  

TABLE OF AUTHORITIES. 0 ies 0 on vine vo Wiiein win 

I. 

II. 

111. 

  

  

INTRODUCTION «tv 6l oa wie uw a tat ar ay ai onset 

ARGUMENT AND AUTHORITIES 'v «v's ‘a oh dite in a 0g 

A. The Court Should Decide Federal Defendant’ 

FE. 

S 

Pending Dispositive Motion Before Ruling On 
  

The Motion To INLErvent . . « ¢ ov oo va 
  

The Court Should Rule On Named Plaintiffs! 
Motion For Class Certification Before 

Ruling On The Motion To Intervene . . . . 
  

  

Proposed Intervenors Lack The Requisite 
Standing Since They Have Failed To 
Demonstrate Any Injury Suffered As A 
Result Of The New HCFA Guidelines . . . . 

  

Proposed Intervenors Have Not Met The 
Requirements For Intervention As Of Right 
Under Federal Rule of Civil Procedure 24 (a) (2)   

1. Disposition Of This Action Will Not 
Impair Or Impede Proposed Intervenors' 
Ability To Protect Their Interest . 

  

2 Proposed Intervenors' Interests Are 
Adequately Represented By Existing 
Plaintiffs . «i. oe. 
  

  

Permissive Intervention Pursuant To Federal 

Rule of Civil Procedure 24(b) Should Be Denied 
  

CONCLUSION vw os eo 0 ebnn i viin wile Laie is oa 
  

12 

14 

21 

25 

29 

 



  

TABLE OF AUTHORITIES   

CASES: PAGE(S) 

Allen Calculators, Inc. v. National Cash 

Register CO., 322 U.S... 137, (1944) a NRE ER Ge ERE Sa 27 

  

  

Allen v. Wright, 468 U.S. 737 (1983) REN Ur TEP IRE CE TE TE Fo   

Bradley v. Milliken, 828 F.24 1186 {6th Cir. 1987) vile a ‘erie 23   

Bresgal Vv. Brock, 843. F.24 1163 (9th Cir. 1988) + + +e ov ww. +: 18   

British Airways Bd. v. Port Authority of 

New York and New Jersey, 71 F.R.D. 583 

(SD Nulls 1OTBY Tie to 4 Loin vv nies ie Wa Res gO 0g 

  

  

Burns v. United States R.R. Retirement Bd., 
701 F.24.189 (D.C. Cir. 1983) Mei ae TI TS NE A ME i LL 18 
  

Bush v. Viterna, 740. F.24 350 (5th Cir. 1984) . . » . 23, 24, 26   

  

  

Califano v. Yamasaki i442 U.S, 682 {1979 us vv ov a oie ivie ie oe '18 

Ceres Gulf v. Cooper, 957 F.2d 1199 (5th Cir. 1992) . . . 14, 15 

cook v. Bates, 92 F.R.D. 119 (S.D.N.Y. 1981) vi dyie ws whim, B   

Crosby Steam Gage & Valve Co. Vv. Manning, 

Maxwell & Moore, Inc., 51 F. Supp. 972 
(D. Mass. 1943) FORTY AA HT Ce SE i CINE es Le Mat nls ENS NE 1 

  

  

Davis v. Board of School Comm'rs of Mobile, 
600 P.,20 470 (BLh Cir. 1979) vv Mo ts ern ov aie eo ad wi «16 
  

Harris v. Amoco Production Co. 

768 ¥F.24 669 (Bth Cir. 1985), cert. denied 
sub nom. Amoco Prod. Co. v. Equal Employment 

Opportunity Comm'n, 475 U.S. 1011(1986) . vi + ‘vin vv t% 2,8 

  

  

  

  

  

Head v. Jellico Hous. Auth., 
870 F.24:1117 {6th Cir. 1989) A Ee Sle NE RE LE 29 

Hobbs v. Police Jury of Morehouse Parish, 

49 F.R.D.. 176 {(W.D.- la." 1970) NEU RR Re El 
  

Hunt v. Washington State Apple Advertising Comm'n, 
432 Uu8+ 333 (1977) RE (ER PS LW RIOR IMLS Tn ER tion IN il 
  

International Tank Terminals, I1td. v. M/V 

Acadia Forest, 579 F.2d 964 (5th Clr. 1978)  v + «tiie «4 713 
  

  

= ii i= 

 



  

Jones v. Caddo Parish School Bd., 
73% F.20 923 (5th Cir. 1984. . "vices view Wb Wha Yas 
  

Kneeland v. National Collegiate Athletic Ass'n, 
806 P.2d 1285 (5th Cir.), cert. denied 
sub nom. Southern Methodist Univ. v. Kneeland, 
484 U.S. 817 (1987) o ieiiligt gl HL elie i ete el Ty 23, 26 

  

  

    

Rorioth v. Brisco, 523 F.24 1271 (5th Cir. 1978) . uv . wid + 29 
  

League of United Latin Am. Citizens, Council No. | 
4434 Vv, Clements, 884 F.2d 185 (8th Cir. 1989) . « «. «.. 26 
  

  

  

  

Martin v. Ralvar Corp., 411 F.2d 552 (5th Cir. 1969) . . « .. 23 

Matthews, et. al. v. Coye, 

No. C 90 3620 EPL (N.D. Cal.) a eee el ee 18, 19 

McClune v. Shamah, 593 F.2d 482 (3d Cir. 1979) PR (a 
  

Montgomery v. Rumsfeld, 572 F.2d 250 

(9th Cir. 1973) wie Tie fle Je le ss Tei el wie we ei eee 27 
  

N.Y.C. Coalition to End Lead Poisoning v. Koch, 
524" N.¥.8.2d 314 (Sup. Ct. 1987), arr’d, 
526 N.¥.5.24 918 {ist Dept. 1988) « « ov tu oi via ing 

  

New Orleans Public Serv., Inc. v. United Gas 

Pipe Line Co., 732 F.2d 452 {5th Cir.), 

cert. denied sub nom. Morial v. United 

  

  

    

  

  

  

  

  

  

  

Gag Pipe Line Co., 469 U.S. 1019 (1984) . . . . "13, 26, 28 

New York State Club Ass'n v. New York, 

487 US, 1 (1088) ie id a. ieee ee eae TA 

Ordnance Container Corp. v. Sperry Rand Corp., 

478 FP.20 844 UBLh CIT. A973) « vo ve wie vie winin 3% 23 

Ramsey Vv. Arata, 406 PF. Supp. 435 (N.D. Tex. 1975) oie tet 26 

Schaulis v. CTB/McGraw-Hill, Inc., 

496 PF. Supp. 666 (N.D.. Cal. 1980). nh i vie wit ae wT 

Securities and Exchange Comm'n v. Everest 

Management _Corp., 475 F.24 1236 (24 Cir. 1972) wv v «iv « 28 

Smuck Vv. Hobson, 408 F.2d 175 (D.C. Cir, 1969) «viv wv viwia’ 232   

Stadin v., Union Elec. Co., 
309 P.2d 912 (8th Cir. 1962), 
cert.ndeniced, 373 U.S, 815 (1963) "viv «viv ioe vin +0716 

  

  

- iii - 

 



State of Utah v. American Pipe & Constr. Co., 
473 F.24 880 (9th Cir. 1973), aff'd, 

A140. 8. B38 (A074. 5. a ae ae at, 

  

Thurman v. FDIC, 889 F.2d 1441 (5th Cir. 1989) 
  

Trans World Airlines, Inc. v. Mattox, 
712 F. Supp. 99 (W.D. Tex. 1989), 
aff'd, 897 F.24 773 (5th Cir.) cert. denied, 
Tl eSeit av 31) 8,00, 307 (1990) “i -» 

  

  

Trbovich v. United Mine Workers of America, 
404 U.S. 528 (1972) CS PR wall GT SS SN cf 
  

United States v. Allegheny-Ludlum Indus., Inc., 
517 F.24 826 (5th Cir. 1975), cert. denied, 
425 US, O00 LYOTON  o aia wo tuin. viii oe 

  

  

United States v. Texas Eastern Transmission Corp., 
023 F.2d 410 {8th Cir. 31991) . . « vin. 
  

Valley Forge College v. Americans United 
for Separation of Church and State, Inc., 
454 U,.8, 464 (1981) . ie oh. Vi « viaiie 

  

  

Watson v. Fort Worth Bank & Trust, 

728 F.24 791 (5th Cir. 1986), vacated 
on other grounds, 487 U.S. 977 (1988) 

  

  

MISCELLANEOUS: 
  

7C Wright, Miller & Kane, 
Federal Practice and Procedure, 
Civil 2d § 1909 (1986) 
  

U.8. Const. arr. 111, "8 2 

 



  

I. 

INTRODUCTION 
  

People United for a Better Oakland ("PUEBLO"), Denver Action for 

a Better Community ("ABC"), New York City Coalition to End Lead 

Poisoning ("NYCCELP"), and a number of individuals (collectively 

referred to as "proposed intervenors") have filed a motion to 

intervene pursuant to Federal Rule of Civil Procedure 24(a), or in the 

alternative, Rule 24 (b) (2), seeking essentially the same relief 

against defendant United States of America ("USA") as the original 

named plaintiffs. 

Federal defendant has previously argued in its Motion to Dismiss 

that since the named plaintiffs lack the requisite standing, this 

action should be dismissed. Accordingly, if defendant USA's pending 

dispositive motion is granted, this Court need not even address the 

present request for intervention. 

[I]t is axiomatic that "intervention will not be 
permitted to breathe life into a 'nonexistent' 
lawsuit. . ¢ ." A motion for intervention under 
Rule 24 is not an appropriate device to cure a 
situation in which plaintiffs may have stated 
causes of action that they have no standing to 
litigate. 

McClune v. Shamash, 593 F.24 482, 436 (34 Cir. 1979) (citations   

omitted). Accord Cook v. Bates, 92 F.R.D. 119, 122 (S.D.N.Y. 1981)   

("[tlhere must be an existing litigation into which to intervene . . 

because intervention may not be utilized to revive a moribund 

lawsuit.") (citations omitted). "[A]n intervenor takes the case as he 

finds it," Hobbs v. Police Jury of Morehouse Parish, 49 F.R.D. 176, 
  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 
PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 
INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 1 
  

 



  

180 (W.D. La. 1970), for intervention is an ancillary proceeding, 

requiring the existence of a properly instituted main suit. Harris v. 
  

Amoco Production Co., 768 F.2d 669, 675 (5th Cir. 1985), cert. denied     

sub nom. Amoco Prod. Co. v. Equal Employment Opportunity Comm'n, 475 
  

U.S. 1011 (1986) (citations omitted). 

Defendant USA has also opposed named plaintiffs' request for 

certification of a nationwide class of all Medicaid-eligible children 

residing in the United States. The Court should rule on the pending 

class certification motion first, because it is likely to obviate the 

need for the Court to address the request for intervention. If named 

plaintiffs' request for nationwide class certification is denied, 

proposed intervenors' rights would not be affected in any way by this 

action. Indeed, one of the proposed intervenors, NYCCELP, already has 

an action pending in the jurisdiction in which its members reside. 

See Proposed Intervenors' Memorandum in Support of Motions to 

Intervene and to Join Additional Defendant ("Proposed Intervenors' 

Motion to Intervene") at 6; Proposed Intervenors' [Proposed] Complaint 

in Intervention ("Proposed Intervenors' Complaint") at ¢q 18. That 

litigation will continue independently of this case.! Moreover, 

proposed intervenor PUEBLO is a party to a settlement agreement with 

the State of California whereby its members have already been 

receiving the very relief which they seek -- administration of the 

blood lead test for all Medicaid-eligible children residing in the 

  

! Indeed, the existence of this previously pending litigation is 
yet another reason why class certification should be denied. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 2   

 



  

State of California. See Proposed Intervenors' Motion to Intervene at 

6; Proposed Intervenors' Complaint at q 16. The other proposed 

intervenors would be in a position to institute their own actions in 

their individual home fora if they so choose. There is no reason for 

them to participate in the present action pending in Dallas, Texas.? 

In addition, proposed intervenors, like the named plaintiffs, 

have failed to demonstrate the requisite associational and individual 

standing under Article III of the Constitution to sue on their own 

behalf or on behalf of the nationwide class of all Medicaid-eligible 

children which they seek to represent. Accordingly, proposed 

intervenors' request for intervention should be denied. 

Even if the Court reaches the merits of the request for 

intervention, proposed intervenors are not entitled to intervene as of 

right under Federal Rule of Civil Procedure 24 (a) (2) because their 

interests are adequately represented by the existing plaintiffs. The 

proposed intervenors share the same ultimate objectives as those of 

named plaintiffs: to have this Court enjoin the implementation of the 

current guidelines issued by the Health Care Financing Administration 

("HCFA") with respect to lead testing, and to require the Secretary of 

the Department of Health and Human Services ("HHS") to mandate the 

states' use of the more sensitive blood lead test for all Medicaid- 

eligible young children. Indeed, the proposed intervenors have made 

  

> If named plaintiffs' request for nationwide class certification 
is granted, however, proposed intervenors have failed to demonstrate 
that they are not adequately represented by the original plaintiffs and 
their counsel, as discussed infra. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 3 
  

 



  

no compelling showing as to why their interests are not identical to 

those of the existing plaintiffs, and can, therefore, be adequately 

represented by them. This failure militates against their 

participation in this action. Since proposed intervenors share the 

same ultimate objectives with the named plaintiffs, the presence of 

the proposed intervenors would add nothing of substance to the 

resolution of the issues in this action.’ 

Finally, the Court should deny proposed intervenors' request for 

permissive intervention pursuant to Rule 24 (b) (2) because they are 

unlikely to contribute significantly to the development of any factual 

issues, and their presence in this case may in fact delay and 

needlessly complicate the proceedings. Proposed intervenors, however, 

should be permitted to file amicus curiae briefs.   

II. 

ARGUMENT AND AUTHORITIES 
  

A. The Court Should Decide Federal Defendant's Pending Dispositive 
Motion Before Ruling On The Motion To Intervene 
  

In its Motion to Dismiss, defendant USA has argued that as a 

threshold matter, named plaintiffs lack standing to bring this action 

since they suffer no injury from the HCFA guidelines. Indeed, those 

very guidelines would require that named plaintiffs receive the blood 

  

® Nor have proposed intervenors articulated any substantial reasons 
why the existing plaintiffs are unable to represent their interests, 
such as collusion between the existing parties, nonfeasance by the 
existing plaintiffs, with whom proposed intervenors' interests are 
aligned, an interest of the existing plaintiffs substantially adverse to 
that of the proposed intervenors, or inadequacy of the named plaintiffs’ 
counsel. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 4 
  

 



  

lead test they seek. Accordingly, if defendant USA's pending 

dispositive motion is granted, this Court need not even address the 

present request for intervention. 

[I]t is axiomatic that "intervention will not be 
permitted to breathe life into a 'nonexistent' 
lawsuit. . . ." A motion for intervention under 
Rule 24 is not an appropriate device to cure a 
situation in which plaintiffs may have stated 
causes of action that they have no standing to 
litigate. 

McClune v. Shamah, 593 F.2d 482, 486 (3d Cir. 1979) (citations   

omitted). Accord Cook v. Bates, 92 F.R.D. 119, 122 (S.D.N.Y¥Y. 1981) 
  

("[t]here must be an existing litigation into which to intervene . . 

because intervention may not be utilized to revive a moribund 

lawsuit.") (citations omitted). "[A]n intervenor takes the case as he 

finds it," Hobbs v. Police Jury of Morehouse Parish, 49 F.R.D. 176, 
  

180 (W.D. La. 1970), for intervention is an ancillary proceeding, 

requiring the existence of a properly instituted main suit. Harris v.   

Amoco Production Co., 768 F.24 669, 675 (5th Cir. 1985), cert. denied     

sub nom. Amoco Prod. Co. v. Equal Employment Opportunity Comm'n, 475 
    

U.S. 1011 (1986) (citations omitted). 

If the original named plaintiffs lack standing, the case must be 

dismissed. The proposed intervenors are then free to pursue any 

additional litigation they choose in their home fora. 

B. The Court Should Rule On Named Plaintiffs' Motion For Class 

Certification Before Ruling On The Motion To Intervene 
  

Defendant USA has also opposed named plaintiffs' request for 

certification of a nationwide class of all Medicaid-eligible children 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 5 
  

 



residing in the United States of America. Federal defendant has 

argued that since named plaintiffs have failed to demonstrate that 

they possess the requisite standing, any claim for class certification 

must necessarily fail. Defendant USA has demonstrated that these 

"high risk" named plaintiffs cannot purport to represent a class which 

would include children considered to be "low risk" under the HCFA 

guidelines, as to whom the guidelines encourage, but do not mandate, 

the states' use of the blood lead test. Moreover, federal defendant 

has argued that the class which named plaintiffs seek to have 

certified is substantially overbroad, in that it includes both "high 

risk" children, who lack the requisite standing as do the named 

plaintiffs, and "low risk" children. Additionally, the federal 

defendant has shown that even if named plaintiffs have standing, this 

Court should not certify a nationwide class but should limit any class 

to residents of the State of Texas. 

The Court should rule on the pending class certification motion 

first, because, as with the motion to dismiss for lack of 

jurisdiction, it is similarly likely to obviate the need for the Court 

to address the present request for intervention. If named plaintiffs’ 

request for nationwide class certification is denied, proposed 

intervenors' rights would not be affected in any way in this action. 

Proposed intervenor PUEBLO is a party to a settlement agreement with 

the State of California whereby its members have already been 

receiving the very relief which they seek -- administration of the 

lood lead test for all Medicaid-eligible children residing in the 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 6    



State of California. See Proposed Intervenors' Motion to Intervene at 

6; Proposed Intervenors' Complaint at § 16. Moreover, proposed 

intervenor NYCCELP already has an action pending in the jurisdiction 

in which its members reside, and seek relief similar to the relief 

sought here. See Proposed Intervenors' Motion to Intervene at 6; 

Proposed Intervenors' Complaint at q 18. That litigation will 

continue independently of this case, and is likely to result in a 

decision before a ruling is issued in the present action.* The 

remaining proposed intervenors would be in a position to institute 

their own action in their home fora if they so choose. As a result, 

there is no reason for the proposed intervenors to participate in the 

present action pending in Dallas, Texas. 

Accordingly, deciding whether to certify a nationwide class of 

all Medicaid-eligible children may obviate the need for the Court to 

decide the present request for intervention. 

Co Proposed Intervenors Lack The Requisite Standing Since They Have 
Failed To Demonstrate Any Injury Suffered As A Result Of The New 
HCFA Guidelines 
  

The proposed intervenors, like the named plaintiffs, have failed 

to demonstrate with any specificity that they meet the requirements of 

standing under Article III of the Constitution to sue on their own 

behalf or on behalf of the nationwide class of all Medicaid-eligible 

children which they seek to represent. As with the original named 

plaintiffs, the injury of which proposed intervenors complain does not 

  

“ The existence of these separate actions further militates against 
certification of a nationwide class. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 7 
   



  

stem from HCFA's issuance of the challenged guidelines and cannot be 

redressed by rescission of these guidelines or any other relief 

proposed intervenors seek from defendant USA. Accordingly, proposed 

intervenors' request for intervention should be denied. 

It is well established that parties before a court must have 

standing and must satisfy the requirements of Article III, section 2 

of the Constitution. Allen v. Wright, 468 U.S. 737, 750 (1984); 
  

Valley Forge Christian College v. Americans United for Separation of 
  

Church and State, Inc., 454 U.S. 464, 471 (1981). See U.S. Const.   

art. III, § 2. These would-be plaintiffs are, of course, subject to 

the same jurisdictional prerequisites. 

In contrast to the specific allegations of the four named 

plaintiffs that they live near a battery crushing and lead product 

fabrication plant located in West Dallas, Plaintiffs' Complaint at ¢ 

24, individual proposed intervenors fail to provide specific details 

regarding their living conditions and possible exposure to lead 

poisoning. See Proposed Intervenors' Complaint at €9 19-20. The only 

detailed allegation is with respect to individual proposed intervenors 

Juan Wilkins, Ashard Moore, Jason Rollins, Ashea Roberson and Nasheika 

Roberson, residents of North Carolina whose "public housing unit was 

found to contain lead paint on the window sills and doorways." 

Proposed Intervenors' Complaint at q 20. As defendant USA has 

previously explained in its Motion to Dismiss with respect to the 

named plaintiffs, under the challenged HCFA guidelines, at least 

certain of the individual proposed intervenors would be considered at 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 8 
  

 



  

"high risk" of having elevated blood lead levels.” Since the HCFA 

guidelines require that the most sensitive blood lead test be 

administered for those children determined to be at "high risk," these 

proposed intervenors should receive the blood lead test they desire. 

See HCFA State Medicaid Manual, attached to Declaration of Michael M. 

Daniel in Support of Motion for TRO Against the USA ("HCFA 

guidelines") at § 5123.2(c); Declaration of William McC. Hiscock, 

attached as Exhibit "A" to defendant USA's Motion to Dismiss ("Hiscock 

Declaration") at q 14. These "high risk" individual proposed 

intervenors therefore will not be injured by the application of the 

new HCFA guidelines. In fact, they will only benefit from their 

application. Not only is there no "concrete and particularized" 

injury that these individual proposed intervenors would suffer as a 

result of the application of the new HCFA guidelines, there is not 

even a threat of a "conjectural or hypothetical" injury from those 

guidelines.® 

  

> The response of individual proposed intervenors Juan Wilkins, 
Ashard Moore, Jason Rollins, Ashea Roberson and Nasheika Roberson to at 
least one of the verbal assessment questions listed in the new HCFA 
guidelines -- i.e., "Does the house have peeling or chipping paint?" or 
"Does your child live in . . . an old house built before 1960?" -- 
should clearly be in the affirmative. See HCFA guidelines at § 
5123.21a). 

°® In addition, proposed intervenors' requested preliminary and 
permanent injunctive relief, see Proposed Intervenors' Complaint at 9 
47a-47d, would not redress any alleged harm to them. The injury of 
which they complain -- i.e., the failure of the proposed intervenors to 
receive the blood lead test -- cannot be redressed by enjoining the 
challenged September 1992 HCFA guidelines. To the contrary, those 
guidelines require a blood lead test and appropriate intervention in the 
circumstances alleged by proposed intervenors, and granting the relief 

(continued...) 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT =-- Page 9 
  

 



  

With respect to individual proposed intervenors Bryan Alan 

Gourley, Wesley Kyle Gourley, Bridget Michelle Gourley, Linda Danielle 

Gourley and Betsey Irene Gourley, proposed intervenors provide no 

details regarding their possible risk of exposure to lead poisoning. 

See Proposed Intervenors' Complaint at § 19. As to these individual 

proposed intervenors, applicants simply allege that the "Gourley 

children are entitled to lead blood level tests for lead poisoning 

through the EPSDT program, but they have not received any." Proposed 

Intervenors' Complaint at q 19. Under the HCFA guidelines in effect 

prior to September 19, 1992, the Gourley proposed intervenors should 

have at least received the EP test. In accordance with the new HCFA 

guidelines, the Gourley proposed intervenors should be receiving a 

verbal assessment followed by a blood test (which may be the EP test 

only if they are found to "low risk"). If they are not receiving such 

assessment under the EPSDT program, their injury is not attributable 

  

5({...continued) 
sought by proposed intervenors from federal defendant would offer them 
no additional relief. 

Furthermore, as defendant USA has previously demonstrated in its 
Motion to Dismiss, requiring HCFA to issue guidelines that require the 
states' use of only the blood lead test would, in all likelihood, have 
little or no practical effect. The HCFA guidelines take into account 
the requisite "transition" period needed for all states to move away 
from using EP tests and toward universal blood lead tests for all young 
Medicaid-eligible children, while mandating that children at "high risk" 
receive the blood lead test now. See HCFA guidelines at § 5123.2(c); 
Hiscock Declaration at q 13. See also defendant USA's Motion to Dismiss 
at 26-27. Indeed, given the states' current capacity limitations, 
requiring blood lead tests for all Medicaid-eligible children, without 
assigning priority according to whether the child is at "high risk" or 
"low risk," may result in significant delays in providing blood lead 
tests for "high risk" children including certain of the proposed 
intervenors. 

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 10 
  

 



  

to the HCFA guidelines, and is most appropriately redressed by the 

state department of health, not by the federal defendant. Not only 

will the Gourley proposed intervenors not be injured by the 

application of the new HCFA guidelines, they too will only benefit 

from their application. The Gourley proposed intervenors, 

accordingly, also lack the proper standing. 

Moreover, organizational proposed intervenors PUEBLO, ABC and 

NYCCELP lack the requisite standing to intervene on behalf of their 

individual members. To secure "associational standing," an 

organization must show that: 

(a) its members would otherwise have standing to 
sue in their own right; (b) the interests it seeks 
to protect are germane to the organization's 
purpose; and (c) neither the claim asserted nor 
the relief requested requires the individual 
participation of individual members in the 
lawsuit. 

Hunt v. Washington State Apple Advertising Comm'n, 432 U.S. 333, 343 
  

(1977). See also New York State Club Ass'n v. New York, 487 U.S. 1, 9 
  

(1988). 

Proposed intervenors PUEBLO, ABC and NYCCELP lack associational 

standing because they have all failed to allege any facts to support a 

claim of injury to their organizational purposes or the interests of 

their members as a result of the new HCFA guidelines. PUEBLO and 

NYCCELP cannot show that the interests they have vindicated or are 

pursuing in litigation are injured by the HCFA guidelines. Moreover, 

as federal defendant has demonstrated, under the new HCFA guidelines, 

those members of PUEBLO, ABC and NYCCELP determined to be at "high 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 11 
  

 



risk" for lead poisoning would receive the blood lead test they 

desire. These "high risk" members therefore will not be injured by 

the application of the new HCFA guidelines. In fact, they will only 

benefit from their application, and therefore lack standing. And, 

because HCFA has indicated that it will provide federal matching funds 

for states! use of the blood lead test regardless of risk level, the   

guidelines encourage, rather than deter, more widespread use of the 

blood lead test. 

As a result, since proposed intervenors are not injured by HCFA's 

guidelines, they lack the requisite standing to intervene, and 

accordingly, their request for intervention should be denied. 

D. Proposed Intervenors Have Not Met The Requirements For 
Intervention As Of Right Under Federal Rule of Civil Procedure 

24 (a) (2) 
  

Even if the Court reaches the merits of the request for 

intervention, proposed intervenors fail to meet the requirements for 

intervention as of right under Rule 24 (a) (2), and accordingly, their 

motion to intervene as of right should be denied. Rule 24 represents 

"'an accommodation between two potentially conflicting goals: to 

achieve judicial economies of scale by resolving related issues in a 

single lawsuit, and to prevent the single lawsuit from becoming 

fruitlessly complex or unending.'" United States v. Texas Eastern 
  

Transmission Corp., 923 F.2d 410, 412 (5th Cir. 1991) (quoting Smuck     

vy. Hobson, 408 F.2d 175, 179 (D.C. Cir. 1969) {en banc)).   

It is well settled that an applicant for intervention bears the 

burden of demonstrating that he or she has met all of the requirements 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 12    



  

for intervention under Rule 24(a) (2).’ New Orleans Public Serv., 

Inc. v. United Gas Pipe Line Co. ("NOPSI"), 732 F.2d 452, 463 (5th 
  

Cir.), cert. denied sub nom. Morial v. United Gas Pipe Line Co., 469 
  

U.S. 1019 (1984), following International Tank Terminals, Ltd. v. M/V 
  

Acadia Forest, 579 F.2d 964, 967 (5th Cir. 1978). When seeking 
  

intervention as of right, an applicant must show that (1) the 

application is timely, (2) the intervenor has an interest relating to 

the litigation, (3) the disposition of the action may, as a practical 

matter, impair or impede the intervenor's ability to protect the 

intervenor's interest, and (4) the intervenor's interest is 

inadequately represented by one of the existing parties in the 

lawsuit. International Tank Terminals, Ltd. v. M/V Acadia Forest, 579 
  

F.2d at 967. Failure to satisfy any one of these criteria requires 

that intervention as of right be denied. Id. 

"[Tlhe inquiry under [Rule 24] (a) (2) is a flexible one, which 

focuses on the particular facts and circumstances surrounding each 

application. . . . [and] intervention of right must be measured by a 

practical rather than a technical yardstick." United States v. Texas 
  

  

’ Rule 24 (a) provides in pertinent part: 

(a) Intervention of Right. Upon timely application 
anyone shall be permitted to intervene in an action 

: (2) 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. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 13 
   



  

Eastern Transmission Corp., 923 F.2d at 413, quoting United States v.     

Allegheny-Ludlum Indus., Inc., 517 F.2d 826, 841 (5th Cir. 1975), 
  

cert. denied, 425 U.S. 944 (1976).   

Defendant USA does not dispute that the proposed intervenors' 

motion was filed in a timely manner, or that the proposed intervenors 

share an interest in the new HCFA guidelines. Nonetheless, the 

proposed intervenors have not met the remaining requirements of Rule 

24, particularly the requirements of inadequate representation and the 

threat that disposition of this case will impair their ability to 

protect any interest the proposed intervenors may have in the 

plaintiffs' action. 

i. Disposition Of This Action Will Not Impair Or 
Impede Proposed Intervenors' Ability To Protect 
Their Interest 
  

Proposed intervenors have failed to demonstrate that the 

"disposition of [this] action may as a practical matter impair or 

impede [their] ability to protect [their] interest . . . ." Fed. R. 

Civ. P. 24(a) (2). Although proposed intervenors cite the opinion of 

the Court of Appeals for this Circuit in Ceres Gulf v. Cooper, 957   

F.2d 1199,.:1203-1204 (5th Cir. 1992), to support their position, the 

  court's holding in Ceres Gulf does not advance the proposed 

intervenors' argument for intervention as of right. As required by 

Rule 24 (a) (2), the Ceres Gulf court focused on the practical   

impediments that would prevent an intervenor from protecting his 

interests. Id. at 1202. The inquiry under Rule 24(a){(2) is a 

flexible one, which focuses on the particular facts and circumstances 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 14 
  

 



  

surrounding each application. Id. (citation omitted). The practical 

considerations that led the Court of Appeals for this Circuit to 

affirm the grant of intervention in Ceres Gulf, however, are simply   

not present in the instant case.® Unlike the intervenor in Ceres 

Gulf, the proposed intervenors here do not state similar policy-making 

interests in support of their own motion to intervene. The proposed 

intervenors' interests will not be impeded because they are 

substantially represented by the existing plaintiffs in this action. 

The proposed intervenors assert that denying their participation 

may impair their ability to "protect directly their interest in 

obtaining the screening for lead poisoning required by the Medicaid 

Act and dictated by the Center for Disease Control", see Proposed 

Intervenors' Motion to Intervene at 5, yet they fail to specify 

exactly how denying their intervention will impede their interest. 

Since proposed intervenors' claims are virtually identical to those of 

the named plaintiffs, proposed intervenors are adequately represented 

  

5 In Ceres Gulf, the Director of the Office of Workers! 

Compensation Programs was permitted to intervene because of his unique 
position as the official charged with administering the statute at issue 
in that litigation. Id. at 1203-1204. The Ceres Gulf court found the 
Director's interests -- namely the consistent administration and 
interpretation of the statute he was charged with enforcing -- could not 
adequately be represented by existing parties, a stevedoring company and 
its former employee seeking workman's compensation. Id. at 1204. The 
court agreed that a decision made without the Director would impede his 
ability to interpret the statute and administer workman's compensation 
programs, and that denying the Director's intervention would have been 
harmful by allowing a precedent, reached without the Director's input, 
on an important statutory issue. Id. 

  

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 15 
  

 



  

by the existing plaintiffs and their counsel,’ and accordingly, there 

is no need forithen to "directly protect their interests" by 

intervening in the present action. 

If named plaintiffs' request for class certification is granted, 

since proposed intervenors are adequately represented by the original 

plaintiffs and their counsel, there would be no need for them to 

intervene in order to make their claims known to the Court. See, 

e.d., Davis v. Board of School Comm'rs of Mobile, 600 F.2d 470, 472-73 
  

(5th Cir. 1979) (where district court is under on-going duty to guard 

rights of a specific class, additional representation of that class by 

intervening individuals 1s superfluous). If the Court were to follow 

proposed intervenors' theory, each and every one of the ten million 

children who proposed intervenors allege are Medicaid-eligible would 

be entitled to intervene -- and file separate briefs and, arguably, 

propound separate discovery -- in this case. This result is clearly 

not envisioned by Rule 24 and is fundamentally at odds with the 

principles of class certification. 

If named plaintiffs' request for nationwide class certification 

is denied, however, the interests of proposed intervenors will by 

  

* See Stadin Vv. Union Elec. Co., 309 F.2d 912, 919 (8th Cir. 1962), 
cert. denied, 373 U.S. 915 (1963) (mere difference of opinion among 
attorneys as to how litigation should be conducted was not in and of 
itself "inadequate representation" within meaning of Rule 24 (a)); 7C C. 
Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil 2d § 
1909 at 344 (1986) (fact that an intervenor does not like the lawyer the 
representative has chosen does not constitute inadequate representation 
of those whose interests are identical with that of the existing party 
or who are formally represented in the lawsuit). In any event, 
potential intervenors make no allegations concerning the ability of 
original plaintiffs' counsel to adequately represent their interest. 

  

  

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 16 
  

 



  

definition not be affected -- much less "impaired" or "impeded" -- by 

the disposition of this action. Not only would proposed intervenors 

not be affected by any potential relief obtained by named plaintiffs, 

but proposed intervenors would be in a position to institute their own 

actions in their individual home fora if they so choose. See Watson   

v. Fort Worth Bank & Trust, 798 F.2d 791, 799 (5th Cir. 1986), vacated 
  

on other grounds, 487 U.S. 977 (1988) (where both circuit and district   

courts denied class certification, circuit court vacated district 

court's findings on class claims to avoid unfair prejudice in 

determination of those class claims if brought later by members of the 

putative class); State of Utah v. American Pipe & Constr. Co., 473 
  

¥.24 580, B82 (9th Cir. 1973), aff'd, 414 U.S. 538 (1974) (vhere court 

denied class certification, applicants not entitled to intervene as of 

right because "as a practical matter, [they] would not be affected by 

any potential recovery by [the plaintiff]"); Schaulis v. CTB/McGraw-   

Hill, Inc., 496 F. Supp. 666, 678 (N.D. Cal. 1980) (if class   

certification is denied, "individual class members who may have 

grievances will be in a position to institute their own actions if 

they so choose."). Even if the present case culminated in a 

settlement agreement, proposed intervenors' ability to protect their 

interests in a separate action would not be harmed. See United States   

v. Texas Eastern Transmission Corp., 923 F.2d at 413-14 (5th Cir. 
  

1991) (settlement binding parties in interest could not adversely 

affect ability of non-party seeking intervention to protect their own 

interest since non-party would not be bound by resulting settlement, 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 17 
  

 



and settlement consent decrees have no precedential effect for 

purposes of res judicata); Jones v. Caddo Parish School Bd., 735 F.2d 
  

923, 936 (5th Cir. 1984) (consent decree does not bind would-be 

intervenor nor anyone in class potential intervenor seeks to 

represent, leaving individuals free to file suit seeking additional 

relief not provided by consent decree); United States v. Allegheny- 
  

ludlun Indus., Inc., 517 F.24:826, 845 (8th Cir. 19758), cert. denied,     

425 U.S. 944 (1976) (where organization was denied leave to intervene, 

neither organization nor any of its members was bound by res judicata 
  

or estoppel to consent decrees entered in case). Proposed intervenors 

could more effectively promote the interests of the diverse group of 

Medicaid-eligible children they purport to represent if they litigated 

these issues in their home fora.?!® 

In fact, proposed intervenors have not hesitated to initiate 

litigation in their home jurisdictions to obtain rulings with respect 

to lead testing and treatment under the Medicaid statute. See 

Matthews, et. al. v. Coye, No. C 90 3620 EFL (N.D. Cal.); N.Y.C.   

Coalition to End lead Poisoning v. Koch, 524 N.Y.S.2d 314, 318-19   

(Sup. Ct. 1987), aff'd, 526 N.Y.S.24 918 (1st Dept. 1988). Proposed 

  

1 Indeed, it would be helpful for proposed intervenors to litigate 
the validity of the HCFA guidelines in more than one federal forum, 
which would result in the adjudication of these issues by different 
courts. This is particularly appropriate where no other circuit has 
considered the validity of the HCFA guidelines since they were issued in 
September 1992. Cf. "Califano v. Yamasaki, 442 U.S. 682, 702 (1979) 
("[1]t often will be preferable to allow several courts to pass on a 
given class claim in order to gain the benefit of adjudication by 
different courts in different factual contexts."); accord Bresgal Vv. 
Brock, 843. F.24 1163, 1170 (9th Cir. 1988): Burns v, United -States R.B. 
Retirement Bd., 701 ¥.24 189, 190 n.4 (D.C. Cir. 1983). 

  

  

  

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 18    



intervenors PUEBLO and ABC argue that they seek to safeguard lead 

blood level testing previously won through litigation. Proposed 

Intervenors' Motion to Intervene at 6. Proposed intervenor PUEBLO's 

interest with respect to the settlement agreement it reached with the 

State of California in October 1991, however, is not at all implicated 

by the present action.!! The settlement agreement between proposed 

intervenor PUEBLO and the California Department of Health Services, to 

which federal defendant was not a party, calls for the administration 

of blood lead tests for all Medicaid-eligible children (under the age 

of 15) residing in the State of California.!? Proposed intervenor 

PUEBLO is entitled to enforce the settlement agreement against the 

State of California if the Department of Health Services fails to 

abide by any of its terms, and accordingly, adequately protect its 

  

i Despite proposed intervenors' allegation that proposed 
intervenor ABC also seeks "to safeguard lead blood lead level assessment 
testing previously won through litigation," proposed intervenor ABC was 
not a party to the settlement agreement in Matthews, et. al. v. Coye, 
No. C 90 3620 EFL (N.D. Cal. Oct. 16, 1991), nor 4o proposed intervenors 

provide any other information to substantiate their assertion with 
respect to proposed intervenor ABC. 

  

2 As part of the settlement agreement, the parties specifically 
agreed that 

United States Centers for Disease Control is an 
appropriate body to look to for guidance in the 
development of a childhood lead poisoning 
prevention program, and that the Center's October 
1991 statement entitled Preventing Lead Poisoning 
in Young Children with respect to the proper 
protocol for pediatric lead testing at present best 
reflects current medical knowledge regarding 
pediatric lead screening, testing and treatment. 

  

  

Matthews, et. al. v. Coye, Stipulation for Settlement and Dismissal 
Without Prejudice, No. C 90 3620 EFL (N.D. Cal. Oct. 16, 1991) ‘at. %'3. 
  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 19 
   



  

interests. Moreover, the new HCFA guidelines not only require the 

blood lead test to be administered for young Medicaid-eligible 

children determined through verbal assessment to be at "high risk" for 

lead poisoning, but also encourage states to move toward universal 

blood lead testing by sharing in the states' costs of screening all 

young children (including those assessed as "low risk"), through the 

use of the blood lead test. See HCFA State Medicaid Manual at § 

5123.2(c). The new HCFA guidelines do not upset any gains previously 

won by proposed intervenor PUEBLO with respect to blood lead testing 

by the State of California. 

Moreover, proposed intervenor NYCCELP already has an action 

pending in the jurisdiction in which its members reside which seeks 

similar relief. See Proposed Intervenors' Motion to Intervene at 6; 

Proposed Intervenors' Complaint at q 18. That litigation will 

continue independently of this case.?® 

Finally, as to the individual proposed intervenors, their 

interest will also not be "impaired" or "impeded" by the disposition 

of this action. As federal defendant has demonstrated, assuming 

original plaintiffs' request for class certification is denied, not 

  

13 The litigation brought by proposed intervenor NYCCELP is 
ongoing. Most recently, intervenor NYCCELP has "moved for a permanent 
injunction requiring New York State and New York City to provide proper, 
accurate lead blood tests under the Medicaid program, based on New 
York's failure to follow federal law." Proposed Intervenors' Complaint 
at '¢ 18. Since proposed intervenor NYCCELP's Motion for Specific 
Enforcement was argued on October 19, 1992, see Proposed Intervenors' 

Complaint at € 18, it is very likely that a decision in that case will 
be issued before a decision is issued in the present action in any 
event. As a result, proposed intervenor NYCCELP would obtain a more 
speedy resolution of these issues in its home forum in New York. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 20 
  

 



  

only would proposed. intervenors not be affected by any potential 

relief (or lack thereof) obtained by named plaintiffs, but they would 

be in a position to institute their own action in their home forum if 

they so choose. Even if a nationwide class of Medicaid-eligible 

children is certified, however, individual proposed intervenors are 

adequately represented by the original plaintiffs and their counsel, 

and there would be no need for them to intervene in order to make 

their claims known to the Court. 

Proposed intervenors have asserted no other potential impairment, 

and there is none. The disposition of this action will not impair or 

impede in any practical way proposed intervenors' ability to protect 

any "interest" they conceivably may have in the subject matter. 

Accordingly, the motion to intervene as of right should be denied. 

2. Proposed Intervenors' Interests Are Adequately 
Represented By Existing Plaintiffs 
  

Whether an intervenor's interests are adequately represented must 

be determined on a case-by-case basis. See Thurman v. FDIC, 889 F.2d 
  

1441, 1446 (5th Cir. 1989). The applicant has the burden of 

demonstrating inadequate representation, however "minimal." See 

Trbovich v. United Mine Workers of America, 404 U.S. 528, 538 n.10 
  

(1972); Ordnance Container Corp. v. Sperry Rand Corp., 478 F.2d 844, 
  

845 (5th Cir. 1973). 

The proposed intervenors have failed to meet even the minimal 

showing of inadequate representation illustrated in the very case they 

cite for this proposition. Trbovich v. United Mine Workers of 
  

America, 404 U.S. 528 (1972). In Trbovich, the Supreme Court found   

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 21 
  

 



  

that the existing plaintiff, the Secretary of Labor, could not 

represent an individual union member's interests in an action to 

enforce rules governing union elections. Id. at 538. Under Section 

403 of the Labor Management Reporting and Disclosure Act of 1959 

("LMRDA"), the Secretary was simultaneously charged with protecting 

the interests of an individual union member against the union, as well 

as enforcing violations of rules governing union elections. Id. at 

532. The Supreme Court found that the intervenor union member's 

interest in protecting his rights against the union was not identical 

to the interest of existing plaintiff, the Secretary of Labor, in 

assuring the larger goal of free and democratic union elections. Id. 

at 539. Because the Secretary's dual obligations did not necessarily 

dictate the same approach to litigation that an individual union 

member might adopt, the Supreme Court allowed the individual union 

member to intervene to protect his own interests. Id. Proposed 

intervenors in this action have shown no comparable conflict between 

their ultimate goal and those of the existing plaintiffs in Texas. In 

fact, the proposed intervenors and the plaintiffs have articulated an 

identical interest in establishing the blood lead test as the test of 

choice for lead poisoning. 

Likewise, in Trans World Airlines, Inc. v. Mattox, 712 F. Supp. 
  

99. (W.D. Tex. 1989), aff'd, 897 F.2d 773 (5th Cir.) cert. denied,   

U.S. , 111 S.Ct. 307 (1990), cited by proposed intervenors, the 

court found that the interests of the foreign air carriers seeking 

intervention were clearly not represented in a suit commenced by 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 22 
  

 



  

domestic air carriers challenging state laws regulating airline 

advertising practices. Id. at 104. The Trans World Airlines court 
  

found that the laws related to foreign air carriers involved issues 

that were not pertinent to domestic air carriers, and thus the 

domestic air carriers could not hope to represent the foreign air 

carriers' interest adequately. Id. The same divergence of interests 

does not exist between the proposed intervenors and the existing 

plaintiffs in Texas. 

When intervenors share the same ultimate objectives as those of 

the existing plaintiffs, a presumption of adequate representation 

arises. See Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 
  

1285, 1288 (5th Cir.), cert. denied sub nom. Southern Methodist Univ. 
  

¥. Kneeland, 484 U.S. 817 (1987); Bush 'v. Viterna, 740 F.2d4-350, 355     

(5th Cir. 1984). In such instances, inadequate representation can be 

established only by showing collusion between the existing parties, 

nonfeasance by the party with whom the intervenor's interests are 

aligned, or an interest of the existing party "substantially adverse 

  

to that of [the intervenor]." Ordnance Container Corp. v. Sperry Rand 

Corp., 478 F.2d at 845; Martin v. Ralvar Corp., 411 r.2d4 552, 553 (5th 
  

Cir. 1969); accord Bradlev v. Milliken, 828 F.2d 1186, 1192 (6th Cir.   

1987). The proposed intervenors have not demonstrated any collusion, 

adverse interest or nonfeasance by original plaintiffs. Moreover, 

proposed intervenors have not articulated any remedial goal for this 

litigation which is not shared by existing plaintiffs. See Proposed 

Intervenors' Complaint at q9 47a-47d. Indeed, assuming arguendo, that   

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 23 
  

 



  

the named plaintiffs, by their counsel, are adjudged by the Court to 

be adequate class representatives within the meaning of Federal Rule 

of Civil Procedure 23 (a) -- a prerequisite to certification of the 

nationwide class sought in the present lawsuit -- the Court will have 

already found, by definition, that they are adequate representatives 

of the proposed intervenors who would be members of that certified 

class. Thus, certification of a nationwide class necessarily compels 

a finding by this Court that proposed intervenors' interests are 

adequately represented by the existing named plaintiffs. That should 

end this Court's inquiry under Rule 24 (a) (2). 

Given the similarity of the ultimate relief both the proposed 

intervenors and the existing plaintiffs seek, the proposed intervenors 

have failed to show that their interests are not identical with those 

of the plaintiffs. If the intervenor's interest is identical to that 

of one of the present parties, then a compelling showing should be 

required to demonstrate why this representation is not adequate. 7C 

C. Wright, A. Miller & M. Kane, Federal Practice and Procedure, Civil   

2d § 1909 (1986). See Bush v. Viterna, 740 F.2d at 358 (association   

of Texas counties, which shared the same objectives as the existing 

defendants in prisoners' civil rights action, did not overcome 

presumption that its interest was adequately represented). 

In distinguishing their interests from those of plaintiffs, the 

individual proposed intervenors state only that existing plaintiffs 

are an individual guardian and Medicaid-eligible individuals from the 

State of Texas. The simple fact that the existing plaintiffs are 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 24   

 



  

residents of another state does not necessarily indicate that their: 

interests are different from those of the individual proposed 

intervenors, or any other Medicaid-eligible child protected by HCFA's 

lead poisoning screening guidelines. Similarly, since proposed 

intervenors claim an interest in challenging HCFA's current 

interpretation and implementation of the EPSDT lead poisoning 

screening provisions, their interest is also no different than those 

of the existing plaintiffs. 

E. Permissive Intervention Pursuant To Federal Rule of Civil 

Procedure 24 (b) Should Be Denied 
  

It is well established that permissive intervention!’ is "wholly 

discretionary with the district court even though there is a common 

question of law or fact, or the requirements of Rule 24 (b) are 

otherwise satisfied." Bush v. Viterna, 740 F.2d at 359; NOPSI, 732 
  

F.2d at 471; Kneeland v. National Collegiate Athletic Ass'n, 806 F.2d 
  

at 1289. See also Texas Fastern Transmission Corp., 923 F.2d at 416; 
  

  

* Finally, proposed intervenors' laundry list of public interest 
counsel from across the country representing a purported nationwide 
class of proposed plaintiff-intervenors does not further their argument 
that the interests they represent are different in any way from those of 
existing plaintiffs. 

13 Rule 24(b) states as follows: 

(b) Permissive Intervention. Upon timely 
application anyone may be permitted to intervene in 
an.action .. . (2) vhen an applicant's claim or 
defense and the main action have a question of law 
or fact'in comwon  .. . . 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. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 25 
  

 



  

  Ramsey Vv. Arata, 406 F. Supp. 435, 442 (N.D. Tex. 1975). 

Federal defendant does not dispute that proposed intervenors' 

claims and the claims of the original plaintiffs "have a question of 

law or fact in common" as required by Rule 24 (b) (2). Indeed, as 

stated above, the claims are virtually (if not completely) the same. 

Nonetheless, intervention should not be permitted here. Aside from 

the existence of "common questions," other factors a court considers 

in deciding whether to grant a motion for permissive intervention 

include "whether the intervenors are adequately represented by other 

parties and whether they are likely to contribute significantly to the 

factual issues." league of United Latin Am. Citizens, Council No.   

4434 v. Clements, 884 F.2d 185, 189 (5th Cir. 1989). See also NOPSI,     

  732 F.2d at 472; Kneeland v. National Collegiate Athletic Ass'n, 806 

F.2d at 1289. As defendant USA has amply demonstrated above, proposed 

intervenors are adequately represented by the named plaintiffs. See 

League of United ILatin Am. Citizens, Council No. 4434 v. Clements, 884 
  

F.2d at 189 ("[w]hen a proposed intervenor possesses the same ultimate 

objectives as an existing litigant, the intervenor's interests are 

presumed to be adequately represented absent a showing of adversity of 

interest, collusion or nonfeasance."). In addition, because proposed 

intervenors do not represent any interest or point of view which is 

distinct from that of named plaintiffs, proposed intervenors are 

extremely unlikely to contribute anything new to these proceedings. 

As Judge Wyzanski stated some time ago in a frequently cited passage: 

It is easy enough to see what are the arguments 
against intervention where, as here, the 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 26   

 



  

intervenor merely underlines issues of law already 
raised by the primary parties. Additional parties 
always take additional time. Even if they have no 
witnesses of their own, they are the source of 
additional questions, briefs, arguments, motions 
and the like which tend to make the proceeding a 
Donnybrook Fair. Where [intervenor] presents no 
new questions, a third party can contribute most 
effectively and always most expeditiously by a 
brief amicus curiae and not by intervention. 

Crosby Steam Gage & Valve Co. v. Manning, Maxwell & Moore, Inc., 51 F. 
  

Supp. 972, 973 (D. Mass. 1943). Moreover, the Supreme Court has 

appropriately recognized that "[i]t is common knowledge that, where a 

suit is of large public interest, the members of the public often 

desire to present their views to the court in support of the claim or 

the defense. To permit a multitude of such interventions may result 

in accumulating proofs and arguments without assisting the court." 

Allen Calculators, Inc. v. National Cash Register Co., 322 U.S8. 137, 
  

141-42 (1944). As a result, despite the public interest in the 

effects of lead poisoning in young children nationwide, granting 

proposed intervenors' request for intervention would only result in 

cumulative arguments and would not assist this Court in resolving the 

issues before it, particularly where federal defendant has already 

filed a dispositive motion regarding these issues. See Montgomery v.   

Bunsfeld, 872 F.24 250, 255 (9th Cir. 1973) (affirming trial court's   

discretionary decision to deny intervention of 13 additional 

plaintiffs who would unnecessarily delay and complicate the case); 

Securities and Exchange Comm'n v. Everest Management Corp., 475 F.2d 
  

1236, 1240 (2d Cir. 1972) (denying permissive intervention where 

complicating effect of additional issues and additional parties 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 27 
  

 



  

outweighs any advantage of single disposition of common issues). 

Moreover, to allow each and every one of the ten million Medicaid- 

eligible children to intervene, file separate briefs, and propound 

separate discovery, would clearly create an unmanageable situation for 

the Court. In light of the delay and confusion that would result from 

proposed intervenors' involvement, and the absence of any 

countervailing benefit, this Court should deny proposed intervenors' 

request for permissive intervention. 

Proposed intervenors, however, can contribute meaningfully to the 

development of this action by submitting amicus curiae briefs. See 
  

NOPSI, 732 F.2d at 473 ("[w]here the intervenors do not have a legally 

protectable interest, are adequately represented by an existing party 

and will not add to the relevant factual development of the case, the 

position of amicus may be considered more appropriate than an 

intervention with full-party status . . . ."); British Airwavs Bd. v. 
  

Port Authority of New York and New Jersey, 71 F.R.D. 583, 585 
  

(S.D.N.Y. 1976) (denying permissive intervention and allowing 

intervenors to submit briefs as amici curiae).   

In addition, the Court may deny permissive intervention where, as 

here, the proposed intervenors have other adequate means of asserting 

  

their rights. See, e.9., Head v. Jellico Hous. Auth., 870 F.24 1117, 

1124 (6th Cir. 1989); Korioth Vv. Brisco, 523 F.24 1271, 1279 n.25 (5th   

Cir. 1975). As federal defendant has demonstrated earlier, proposed 

intervenors have a very adequate means of asserting their rights by 

filing individual actions in their home jurisdictions. As a result, 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 28 
  

 



  

permissive intervention should be denied.?!® 

III. 

CONCLUSION 
  

For the foregoing reasons, proposed plaintiff-intervenors!' Motion 

to Intervene with respect to the claims against defendant USA should 

be denied. 

Dated: November 20, 1992 Respectfully submitted, 

STUART M. GERSON 

Assistant Attorney General 

MARVIN COLLINS 

United States Attorney 

MARY ANN MOORE 

Assistant United States Attorney 
Texas Bar No. 14360400 

~ 
{1 i ( g { | ! / 

~../ XIN a. I~ Ee / ASK 

SHEILA LIEBER 
  

  

Notwithstanding federal defendant's opposition to proposed 
intervenors' Motion to Intervene, defendant USA does not object to 
proposed intervenors' motion to join Dr. Louis W. Sullivan, the 
Secretary of HHS, as an additional federal defendant in this action in 
accordance with Federal Rules of Civil Procedure 19 and 20. 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 29 
  

 



    / 
ALINA S. KOFSKY | % 
  

Attorneys, Department of Justice 

Federal Programs Branch, Civil 
Division 

901 E Street, N.W., Room 1010 
Washington, D.C. 20530 
(202) 514-4523 
(202) 616-8470 (Fax #) 

ATTORNEYS FOR DEFENDANT 

UNITED STATES OF AMERICA 

OF COUNSEL: 

HENRY R. GOLDBERG, Deputy Chief 

Counsel for Litigation 
DAVID V. PEERY, Attorney 

HELAINE FINGOLD, Attorney 
Office of the General Counsel 
Department of Health and 

Human Services 
Room 500, East Highrise Building 
6325 Security Boulevard 
Baltimore, MD 21207 
(410) 965-8871 
(410) 966-5187 (Fax #) 

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 30 
  

 



.«C. . @ 

  

CERTIFICATE OF SERVICE 
  

I hereby certify that on this 20th day of November, 1992, a copy 

of Defendant United States of America's Opposition to PUEBLO, ABC, 

NYCCELP and Individual Proposed Plaintiff-Intervenors' Motion to 

Intervene and Memorandum in Support, and Proposed Order, was served 

via first class mail, postage prepaid, upon: 

Laura B. Beshara Bill Lann Lee 
Michael M. Daniel Kirsten D. Levingston 
MICHAEL M. DANIEL, P.C. NAACP Legal Defense & Educational 
3301 Elm Street Fund, Inc. 

Dallas, Texas 75226-1637 315 West Ninth Street, Suite 308 
Los Angeles, California 90015 

Edwin N. Horne 
Assistant Attorney General 
Office of the Attorney General 
State of Texas 
P.O. BOX 12548 

Capitol Station 
Austin, Texas 78711-2548 

\ \ N \ 

7 «t \ rd / ’ 

iis 0 3 Cave 

ALINA S. KOFSKY || /) 
\ / 
Ne? 

  

DEFENDANT UNITED STATES OF AMERICA'S OPPOSITION TO 

PUEBLO, ABC, NYCCELP AND INDIVIDUAL PROPOSED PLAINTIFF- 

INTERVENORS' MOTION TO INTERVENE AND MEMORANDUM IN SUPPORT -- Page 31