11.28.2006

D.N.H. Notes Split Re Whether Standing is Required for Rule 24(a) Intervenors

Per Brook Village North Associates v. JacksonSlip Copy, Not Reported in F. Supp. 2d.,2006 WL 3308328 (D.N.H. Nov. 13, 2006):

Under 28 U.S.C. § 1367(a), federal courts have supplemental jurisdiction over claims raised by intervenors that are part of the same case or controversy as the original case over which the court has jurisdiction. Nevertheless, "[w]here required, standing is fundamental." Mangual v. Rotger-Sabat, 317 F.3d 45, 61 (1st Cir .2003). The circuits are split as to whether standing is required for intervention as of right, and the First Circuit has not decided the question. Id.; see also San Juan County, UT v. United States, 420 F.3d 1197, 1204-05 (10th Cir.2005) (discussing circuit split). In addition, it is far from apparent whether the Tenants would have standing to bring their counterclaim. See, e.g., Gonzaga Univ. v. Doe, 536 U.S. 273, 285-86 (2002); Wright v. City of Roanoke Redevelopment & Housing Auth., 479 U.S. 418, 423 (1987); Perry v. Housing Authority of Charleston, 664 F.2d 1210, 1212-14 (4th Cir.1981); Kingston Square Tenants Ass'n v. Tuskegee Gardens, Ltd., 792 F.Supp. 1566, 1572-73 (S.D.Fla.1992).

To be entitled to intervene as of right, the Tenants bear the burden of showing that their participation is necessary because HUD cannot adequately represent their counterclaim to enforce § 1701z-(b) and its implementing regulations. See B. Fernandez & Hnos., 440 F.3d at 544-45. If the Tenants lack standing to bring their counterclaim, their intervention would not remedy a lack of adequate representation by the existing parties. Therefore, as currently presented, the Tenants have not shown that they can satisfy the fourth element which is necessary for mandatory intervention under Rule 24(a).

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