United States District Court, D. Arizona
ORDER
Honorable Bruce G. Macdonald United States Magistrate Judge
Currently
pending before the Court are Intervenor Applicant National
Association for Biomedical Research's Expedited Motion to
Intervene for Purpose of Appeal (Doc. 73), Motion to Stay
Judgment Pending Appeal (Doc. 74), and Expedited Motion for
Extension of Time to Appeal (Doc. 77). In its discretion, the
Court finds this case suitable for decision without oral
argument. See LRCiv. 7.2(f). The Parties have
adequately presented the facts and legal arguments in their
briefs and supporting documents, and the decisional process
would not be significantly aided by oral argument.
I.
BACKGROUND
The
instant litigation arose from Plaintiff Center for Biological
Diversity's (“CBD”) request to Defendant
United States Fish and Wildlife Service (“USFWS”)
seeking Law Enforcement Management Information System
(“LEMIS”) data pursuant to the Freedom of
Information Act (“FOIA”). USFWS withheld certain
categories of LEMIS data pursuant to FOIA Exemption 4, which
exempts confidential commercial information. Through this
litigation CBD sought release of the following data fields:
1) foreign importer/exporter; 2) United States permit number;
3) quantity; and 4) name of carrier. See Order
3/30/2018 (Doc. 66). On March 30, 2018, the Court denied in
part and granted in part Defendant USFWS's Motion for
Summary Judgment, and granted in part and denied in part
Plaintiff CBD's Cross-Motion for Summary Judgment.
See Id. Accordingly, Defendant USFWS was directed to
provide the data responsive to CBD's request. See
id.
After
the Court issued its Order, Intervenor Applicant National
Association for Biomedical Research (“NABR”)
sought to intervene for purposes of appeal. Subsequently,
Defendant USFWS filed its Notice of No. Appeal (Doc. 81).
Intervenor Applicant NABR filed a Notice of Appeal (Doc. 84),
and the Ninth Circuit Court of Appeal granted a limited
remand to allow this Court the opportunity to rule on
Intervenor Applicant's pending motions.
II.
ANALYSIS
A.
Intervention
Intervenor
Applicant NABR seeks to intervene “for the purpose of
appealing [the] Court's March 30, 2018 judgment requiring
U.S. Fish and Wildlife Service . . . to produce confidential
information that it obtained from 18 different companies,
eight of which are NABR members.” NABR's Mot. to
Intervene (Doc. 73) at 2. Intervenor Applicant NABR further
noted USFWS's uncertainty regarding appeal, and as such
“NABR move[d] to intervene on behalf of its members to
ensure Ninth Circuit review of the decision.”
Id. In Reply, NABR specified that its members
include: Charles River Laboratories; Bristol-Myers Squibb;
Covance Laboratories; AbbVie; Boehringer Ingelheim
Pharmaceuticals; SNBL; Genentech; Novartis; and Alynlam
Pharmaceutical. Reply (Doc. 83) at 1 n.1. Each of these
entities submitted declarations in support of withholding the
requested information under Exemption 4. Id.;
see also Order 3/30/2018 (Doc. 66) at 8-14.
1.
Intervention as of Right
Rule
24(a), Federal Rules of Civil Procedure, governs
interventions as of right and provides in relevant part:
On timely motion, the court must permit anyone to intervene
who . . . claims an interest relating to the property or
transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical
matter impair or impede the movant's ability to protect
its interest, unless existing parties adequately represent
that interest.
Fed. R. Civ. P. 24(a). Intervention on appeal is similarly
governed by Rule 24, Federal Rules of Civil Procedure.
Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997)
(citations omitted). An applicant seeking to intervene as of
right must satisfy the following four-part test:
(1) the
application for intervention must be timely; (2) the
applicant must have a significantly protectable interest
relating to the property or transaction that 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 the applicant's ability to protect that
interest; and (4) the applicant's interest must not be
adequately represented by the existing parties in the
lawsuit.
United
States v. Sprint Communications, Inc., 855 F.3d 985, 991
(9th Cir. 2017) (citations and quotations omitted).
“[T]he party seeking to intervene has the burden to
show that no existing party adequately represents its
interests.” California Dept. of Toxic Substances
Control v. Commercial Realty Projects, Inc., 309 F.3d
1113, 1119 (9th Cir. 2002) (citations omitted); see also
United States v. Alisal Water Corp., 370 F.3d 915, 919
(9th Cir. 2004). Further, “[i]n determining whether
intervention is appropriate . . . [the Court is] guided
primarily by practical and equitable considerations[, ] . . .
generally interpret[ing] the requirements broadly in favor of
intervention.” Donnelly v. Glickman, 159 F.3d
405, 409 (9th Cir. 1998). “In determining whether an
intervenor may subsequently appeal from a decision not being
appealed ...