Somebody's out of it here. Maybe me. Maybe the district court judge. Maybe the panel. Maybe all three.
It's a pretty straightforward -- and entirely correct -- opinion, at least with respect to Part I. Plaintiff sues to declare that allowing religious figures (but almost no one else) to exclude the value of a home or rental payments from their taxable wages violates the Establishment Clause. Pastor Michael Rodgers, a minister in Sacramento, then sought to intervene as a defendant in order to defend the statute. The district court didn't let him, holding that the United States and California were already defendants and had more than adequate incentives to defend the relevant tax statutes. The panel holds that the district court got that right, since adequate representation precludes mandatory intervention under Rule 24. Totally correct. Judge O'Scannlain's opinion on this point is perfect.
It's the second part of the opinion where someone's out of it. Rodgers may not be permitted mandatory intervention, but he alternately claims that he's allowed to permissively intervene, and that type of intervention doesn't have an adequate representation prong. You do, however, have to demonstrate that there's subject matter jurisdiction. For example, in a diversity case, if someone from Texas sues someone from Illinois, someone from New Jersey might be permitted to intervene as a defendant (since diversity won't thereby be destroyed), but not someone from Texas. That's a pretty basic point, and one that we go over in first-year Civil Procedure. It's also something that I'm confident both the district court as well as the panel understands.
It's also the panel's approach to the issue. The panel says that this principle doesn't apply in federal question cases -- like the one here -- because diversity isn't detroyed. If someone from Texas sues someone from Illinois in a federal question case, someone else from Texas can indeed intervene as a defendant, since that doesn't destroy diversity (or, more accurately, the destruction of diversity doesn't matter because that's not how the court gets jurisdiction). To use the modern terminology, in federal question cases (unlike diversity cases), there's supplemental jurisdiction over the intervenor pursuant to 28 U.S.C. 1367, so the rules don't prohibit intervention.
The panel's exactly right in that regard. I've got utterly no objection to that explication, which is spot on. And if the district court refused to allow permissive intervention pursuant to a contrary analysis, it was wrong.
The problem is that that's not what the district court did. It sounds to me like the district court did something far more complicated and subtle -- something that, to tell the truth, may be right, or may be wrong (I'm not entirely sure), but that isn't answered by the typical jurisdictional mantra applied by the panel.
According to the panel, the district court denied permissive intervention "because Rogers could not demonstrate constitutional standing," thus depriving the district court of jurisdiction to allow his intervention as a defendant. This is not your typical jurisdictional problem in intervention cases. The district court's not saying that Rogers destroys diversity or fails to satisfy Section 1367 (which the panel's right is not a problem). It's instead arguing that even if Rogers satisfies traditional congressional and judicial intervention principles, Article III prohbits intervention. That's a different claim than the one that's usually made. And it also means that the panel's typical jurisdictional response is totally irrelevant.
Similarly irrelevant (or simply untrue) is the panel's caveat that it matters whether Rogers seeks to articulate "new claims" (or counterclaims, etc.) as an intervenor. An intervenor inherently creates new claims, at least pursuant to Article III, because his intervention creates claims that didn't otherwise exist; namely, between the plaintiff and the new defendant. To be sure, those claims are largely identical to ones that existed before -- the same basic claim that was made between the plaintiff and the original defendant. But it's still a new claim. When you add a party, you add a claim. That's how it works.
So I think the panel has to at least respond to the district court's argument. Especially since it has at least some facial appeal. Standing is a constitutional requirement. Congress can't obviate it. Nor can a party (or, collectively, the parties) get around constitutional standing requirements by intervening instead of being sued initially. If, for example, Article III does not allow P to sue D, it makes sense that P can't get around that principle by first having P2 sue D and then moving to intervene in the lawsuit. Ditto for Ds.
Now, it may be that Rodgers in fact has standing; I don't know. Nor are we likely to find out, since I'm confident that the district court, on remand, will decide that weighing the discretionary permissive intervention factors counsels against Rodger's intervention, particularly given the advanced stage of the action at this point (which wasn't stayed pending Rodger's appeal).
But that's not the point. The district court made a pretty insightful holding, one that I wouldn't have initially thought of and one that, even after some reflection, I'm not sure about one way or the other. It's something that makes a difference, both doctrinally and practically. Does the Constitution really allow parties without standing to become parties so long as they're attached to an existing party? It's an insufficient answer to say: "Well, in federal question cases, congress did not deprive the federal courts of subject matter jurisdiction over such intervention in Rule 24." Which is all the panel says.
Which is too bad. Not only because it matters. But because there are only a few really interesting intervention cases and questions. This is one of them. To ignore the question (or, I think, more accurately, overlook it) is disappointing.