United States District Court, M.D. Georgia, Macon Division
T. TREADWELL, JUDGE UNITED STATES DISTRICT COURT.
Bourassa moves to intervene as of right or, in the
alternative, permissively. For the following reasons, that
motion (Doc. 228) is DENIED.
states that in April 2016 he was placed in the Tier III
Program in the Special Management Unit (“SMU”) at
the Georgia Diagnostic & Classification Prison
(“GDCP”). Id. at 1. He was transferred
out of Tier III and to a different prison in June 2016, and
he was returned to the GDCP Tier III on March 6, 2018.
Id. at 2, 5. On March 14, 2018, he was transferred
to federal custody to await trial on a RICO charge.
Id. at 4-5. He notes that although he “is a
class member in that he is currently assigned to
GDCP/SMU/Tier III” and claims he will be returning
there, he has not been provided notice of the proposed
Settlement Agreement. Id. at 6. Movant Bourassa
therefore “objects to any proposed settlement agreement
unless and until he is both served with proper notice”
and a copy of the Settlement Agreement “and has an
opportunity to be heard in response to said Settlement
Agreement.” Id. at 7. However, Bourassa also
admits that he “has since obtained access to the
proposed Settlement Agreement.” Id. The Court
also notes that it has certified a class of “all
persons who are or in the future will be assigned to the
facility currently known as the Special Management Unit at
Georgia Diagnostic & Classification Prison, or who are or
in the future will be assigned to the Tier III
Program.” Doc. 256 at 28. Bourassa, who has been in
federal custody for over a year but could conceivably return
to the SMU, is a potential future class member. Doc. 248 at
6. Depending on the outcome of his federal trial, he may or
may not return to the Georgia Diagnostic & Classification
Prison; if he does return, he may or may not be assigned to
Tier III. Doc. 252 at 14-15. Despite that attenuated and
uncertain connection to the Tier III program, class counsel
treat him as a class member for the purposes of this motion.
Doc. 252 at 6.
24(a) of the Federal Rules of Civil Procedure allows, in
certain situations, for intervention as of right, and Rule
24(b) allows for permissive intervention in the Court’s
discretion. Both Rule 24(a) and Rule 24(b) require that a
motion to intervene be “timely,” so the Court
addresses timeliness first. See NAACP v. New York,
413 U.S. 345, 365 (1973).
district court must consider four factors in assessing
timeliness, namely (1) the length of time during which the
would-be intervenor knew or reasonably should have known of
his interest in the case before he petitioned for leave to
intervene; (2) the extent of prejudice to the existing
parties as a result of the would-be intervenor's failure
to apply as soon as he knew or reasonably should have known
of his interest; (3) the extent of prejudice to the would-be
intervenor if his petition is denied; and (4) the existence
of unusual circumstances militating either for or against a
determination that the application is timely.”
United States v. Jefferson Cty., 720 F.2d 1511, 1516
(11th Cir. 1983).
the first factor, it is unclear when Bourassa knew or should
have known of his interest in the case. He claims that he
spent approximately two months in the SMU in April 2016 to
June 2016 and approximately a week in the SMU in March 2018.
Doc. 228 at 1-5. He claims he first learned of this case on
February 26, 2019, and there is no indication that he should
have known of his interest in the litigation before then.
Doc. 228 at 9. He moved to intervene relatively promptly: the
Court received his motion to intervene on March 25, 2019.
Doc. 228 at 1. The first factor, therefore, supports a
finding of timeliness. As to the second factor, Bourassa
moved to intervene not long after learning of his interest in
the litigation, so the existing parties would not be
prejudiced by any delay in Bourassa’s moving to
intervene. As to the third factor, there is minimal prejudice
to Bourassa if his motion is denied, because he was able to
file objections, which were fully considered by the Court.
Docs. 227, 256 at 22-23. Also, as discussed in more detail
below, the representative plaintiffs have an interest
identical to Bourassa’s, and so he will not be
prejudiced if his motion is denied. See Jefferson
Cty., 720 F.2d at 1517 (noting that courts will
“find no prejudice sufficient to give weight to the
third factor” when a putative intervenor has interests
identical to those of a party). As to the fourth factor,
there are no unusual circumstances concerning the timing of
Bourassa’s motion. Considering all the circumstances,
Bourassa’s motion is timely.
Intervention as of Right
24(a)(1) allows intervention when the putative intervenor is
“given an unconditional right to intervene by a federal
statute,” but Bourassa has not pointed to any statute
conferring an unconditional right to intervene in this case.
Rule 24(a)(2) allows intervention as of right when the
putative intervenor “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.”
intervene as of right, therefore, a movant must satisfy four
requirements: “(1) his application to intervene is
timely; (2) he has an interest relating to the property or
transaction which is the subject of the action; (3) he is so
situated that disposition of the action, as a practical
matter, may impede or impair his ability to protect that
interest; and (4) his interest is represented inadequately by
the existing parties to the suit.” Purcell v.
BankAtlantic Fin. Corp., 85 F.3d 1508, 1512 (11th Cir.
1996). As discussed above, Bourassa’s motion is timely.
Further, although Bourassa’s connection to Tier III is
attenuated and uncertain, the Court will assume, for the
purposes of resolving this motion, that he satisfies the
second and third requirements.
Bourassa cannot satisfy the fourth requirement for
intervention as of right: demonstrating that his
interest-that is, his speculation that he may return to Tier
III-is inadequately represented by the existing parties.
See Purcell, 85 F.3d at 1512. Generally, the
intervenor will satisfy this requirement "unless it is
clear that [the current parties] will provide adequate
representation.” Chiles v. Thornburgh, 865
F.2d 1197, 1214 (11th Cir. 1989). Although the movant’s
burden to demonstrate inadequacy is “not
onerous,” the movant still “must produce
something more than speculation as to the purported
inadequacy.” Aref v. Holder, 774 F. Supp. 2d
147, 172 (D.D.C. 2011) (quotation marks omitted) (citing
Moosehead Sanitary Dist. v. S.G. Phillips Corp., 610
F.2d 49, 54 (1st Cir.1979); Dimond v. Dist. of
Columbia, 792 F.2d 179, 192 (D.C.Cir.1986)). On the
other hand, “[w]hen the party seeking intervention has
the same ultimate objective as a party to the suit, a
presumption arises that its interests are adequately
represented, against which the petitioner must demonstrate
adversity of interest, collusion, or nonfeasance.”
Int'l Tank Terminals, Ltd. v. M/V Acadia Forest,
579 F.2d 964, 967 (5th Cir. 1978).
argues that class representation is inadequate because class
counsel are sacrificing his speculative interests to further
the interests of other class members. Specifically, he
objects to Paragraph 44 of the Settlement Agreement, which
allows the Defendants to keep an inmate in Tier III for
longer than two years if, among other conditions, “(5)
the inmate’s crime was so egregious that the person was
placed in the Tier III Program immediately upon being placed
in GDC custody; or (6) the inmate, due to his unique position
of influence and authority over others, poses such an
exceptional, credible, and articulable risk to the safe
operation of the prison system or to the public that no
facility other than the Tier III Program facility is
sufficient to contain the ...