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Flying J, Inc. v. Vanhollen

August 20, 2009


Appeal from the United States District Court for the Eastern District of Wisconsin. No. 08-C-110-Rudolph T. Randa, Chief Judge.

The opinion of the court was delivered by: Posner, Circuit Judge


Before POSNER, RIPPLE, and KANNE, Circuit Judges.

The Wisconsin Uniform Sales Act, Wis. Stat. § 100.30, forbids retail sellers of gasoline to sell their product below cost plus a markup equal to the higher of 6 percent of the retailer's cost or 9.18 percent of the wholesale price of the product. The Act authorizes injunctive and monetary remedies both in suits by the state, and in private suits by persons injured by a violation of the Act. Id., §§ 100.30(4), (5), (5m). Flying J, which sells gasoline at truck stops, brought this suit in federal court against the state to enjoin the enforcement of the Act, on the ground that it is preempted by the Sherman Act. The district court agreed that it was preempted and issued the injunction-whereupon the state threw in the towel and decided not to appeal.

Before the 30-day limit for filing a notice of appeal had expired, an association of Wisconsin gasoline dealers moved for leave to intervene in the district court both as a matter of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure and alternatively as a permissive intervenor under Rule 24(b)(1)(B). It wanted to intervene in order to be able both to ask the district judge to re-consider his decision and, if he refused to change it, to appeal. The district judge extended the time for filing the notice of appeal in order to give himself time to consider the motion. Before the extended deadline for filing an appeal expired, he denied the motion to intervene. The appeal asks us to reverse that denial and either request the parties to submit briefs on the merits of the district court's decision, or remand the case with directions that the district judge reconsider his decision in light of the arguments made in the association's motion to reconsider.

The judge denied intervention as of right on the ground that the association (which is to say its members, since the association's standing to litigate the case is derivative from their standing) lacks the required interest in the litigation to authorize such intervention, and alternatively that the motion to intervene was not timely, as the rule requires though without specifying a time limit. The judge denied the request for permissive intervention on the ground that it was untimely also.

No one can maintain an action in a federal court, including an appeal, unless he has standing to sue, in the sense required by Article III of the Constitution-that is, unless he can show injury (in a special sense, noted below) and that he would benefit from a decision in his favor. But the interest required by Article III is not enough by itself to allow a person to intervene in a federal suit and thus become a party to it. There must be more. Rule 24(a)(2) requires that the applicant claim "an interest relating to the property or transaction that is the subject of the action." "Interest" is not defined, but the case law makes clear that more than the minimum Article III interest is required. Cases say for example that a mere "economic interest" is not enough. E.g., In re Lease Oil Antitrust Litigation, 2009 WL 1479410, at *5-6 (5th Cir. May 28, 2009); Mountain Top Condominium Ass'n v. Dave Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995); cf. Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322-23 (7th Cir. 1995). While that is a confusing formulation-most civil litigation is based on nothing more than an "economic interest"-all that the cases mean is that the fact that you might anticipate a benefit from a judgment in favor of one of the parties to a lawsuit-maybe you're a creditor of one of them-does not entitle you to intervene in their suit. United States v. Alisal Water Corp., 370 F.3d 915, 920-21 (9th Cir. 2004); Mothersill D.I.S.C. Corp. v. Petroleos Mexicanos, S.A., 831 F.2d 59, 62-63 (5th Cir. 1987); see Medical Liability Mutual Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 1008-09 (8th Cir. 2007).

The reason is practical, and also obvious: the effects of a judgment in or a settlement of a lawsuit can ramify throughout the economy, inflicting hurt difficult to prove on countless strangers to the litigation. Remoteness of injury is a standard ground for denying a person the rights of a party to a lawsuit. It is one of the "prudential" (as distinct from constitutional) limitations on standing to sue, e.g., Blue Shield of Virginia v. McCready, 457 U.S. 465, 476-78 (1982); MainStreet Organization of Realtors v. Calumet City, 505 F.3d 742, 744-47 (7th Cir. 2007), whereas "a modest probability of injury is enough for standing" in the Article III sense. Wiesmueller v. Kosobucki, No. 08-2527, 2009 WL 1956335, at *3 (7th Cir. July 9, 2009); see North-eastern Florida Chapter of Associated General Contractors v. City of Jacksonville, 508 U.S. 656, 664-66 (1993); Pennell v. City of San Jose, 485 U.S. 1, 6-8 (1988).

Another dimension of the "interest" required for intervention as a matter of right, also borrowed from (though not necessarily identical to) the prudential as distinct from the Article III concept of standing, is that the suitor be someone whom the law on which his claim is founded was intended to protect. New York Public Interest Research Group, Inc. v. Regents of University, 516 F.2d 350, 352 (2d Cir. 1975) (per curiam); see Allen v. Wright, 468 U.S. 737, 750-51 (1984). That's not a problem in this case. Wisconsin's "Unfair Sales Act" is special-interest legislation and the special interest is that of retailers who wish, naturally enough, to limit price competition. They are the statute's direct beneficiaries, as shown by the fact that the statute authorizes them to sue to enforce it against price cutters if they can prove in-jury. Invalidation of the statute would deprive them of the benefit not only of that remedy but also of the principal remedy provided by the statute-public enforcement by a variety of means none requiring proof of injury. The state may sue for civil penalties, Wis. Stat. § 100.30(4), impose cease and desist orders the violation of which incurs a civil penalty, § 100.30(5)(a), and sue to enjoin violations without having to show that its remedy at law is inadequate. § 100.30(5)(b). None of these remedies is available to a private person.

The interest of the private persons intended to be benefited by the Unfair Sales Act in the preservation of this remedial scheme is therefore sufficient to warrant intervention under Rule 24(a)(2), provided that the retailers would be directly rather than remotely harmed by the invalidation of the statute. They would be; they would lose much or even all of their business to their larger, more efficient competitors.

Nor do we think the association's motion to intervene, even though not filed until the district judge had entered his final judgment, was untimely-assuming that all the association wants is to take an appeal (a question we discuss below, and answer in the affirmative). If it wants to present evidence, then its motion was indeed untimely.

It was content for the state attorney general to defend the statute until he decided not to appeal. Its champion, the attorney general, having lost the case, it cannot be allowed to subject the winning party to another trial. United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1294-95 (D.C. Cir. 1980); Smuck v. Hobson, 408 F.2d 175, 181-82 (D.C. Cir. 1969) (en banc); see David L. Shapiro, "Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators," 81 Harv. L. Rev. 721, 752-56 (1968).

Had the association sought to intervene earlier, its motion would doubtless (and properly) have been denied on the ground that the state's attorney general was defending the statute and that adding another defendant would simply complicate the litigation. For there was nothing to indicate that the attorney general was planning to throw the case-until he did so by failing to appeal. At that point the objection to intervention, as long as taking new evidence was not contemplated, evaporated.

Another requirement for intervention as a matter of right under Rule 24(a)(2)-that "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"-presents a greater obstacle to the association's intervening as a matter of right because there is nothing to prevent a member who is injured by pricing in violation of the Unfair Sales Act to sue the violator. There would be no defense of res judicata, because neither the association nor any of its members is (as yet) a party to the present suit. It is true that concern with the stare decisis effect of a decision can be a ground for intervention, New York Public Interest Research Group, Inc. v. Regents of University, supra, 516 F.2d at 352;Atlantis Development Corp. v. United States, 379 F.2d 818, 826, 828 (5th Cir. 1967), because courts are reluctant to overrule a precedent. But the decision of a district court has no authority as precedent. Matheny v. United States, 469 F.3d 1093, 1097 (7th Cir. 2006). And unless ...

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