Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings

Michael Ray Harris

Friends of Animals

September 14, 2011

Hofstra Law Review, Vol. 40, No. 4, 2013

The codification of the Federal Rules of Civil Procedure in 1938 (the “Federal Rules”) created not only a more transactional approach to litigation, but also the flexible party structure that was necessary for “public law litigation” to flourish. Indeed, many argue that intervention by non-parties in public law cases is essential to ensure that the court can hear from and protect the wide range of interests likely to be impacted by its decision. This Article seeks to make a case for limiting intervention as of right in a specific subset of public law proceedings –– those brought to review the legality of informal federal rulemakings pursuant to the Administrative Procedure Act (“APA” or the “Act”). The courts in these cases are placed in a difficult position in considering applications to intervene. On one hand, given the narrow scope of judicial review it is unclear how a court will benefit from the addition of defendant-intervenors seeking to uphold the administrative rule. Instead the court faces the likelihood of information overload and/or information degradation as defendant-intervenors incorporate duplicative or irrelevant arguments into the proceedings. On the other hand, when a court chooses to deny such intervention, it creates the possibility of a lengthy appeal that will further delay judicial review. In sum, intervention practice under the Federal Rules harms the rights of those entitled to judicial review of an agency rulemaking and, most importantly, negatively impacts the public as a whole by reducing the efficiency of the administrative rulemaking process. As such, this Article argues that the practice is inconsistent with both the APA and the intent of third-party practice under the Federal Rules.

Number of Pages in PDF File: 51

Keywords: Intervention, Administrative law, judicial review, civil procedure

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Date posted: September 15, 2011 ; Last revised: November 3, 2012

Suggested Citation

Harris, Michael Ray, Intervention of Right in Judicial Proceedings to Review Informal Federal Rulemakings (September 14, 2011). Hofstra Law Review, Vol. 40, No. 4, 2013. Available at SSRN: https://ssrn.com/abstract=1927431 or http://dx.doi.org/10.2139/ssrn.1927431

Contact Information

Michael Ray Harris (Contact Author)
Friends of Animals ( email )
Denver, CO
United States
HOME PAGE: http://www.friendsofanimals.org

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