10-2132-cv
Citizens Against Casino Gambling in Erie County v. Hogen

                              UNITED STATES COURT OF APPEALS
                                  FOR THE SECOND CIRCUIT

                                         SUMMARY ORDER

RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO
A SUMMARY ORDER FILED ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS
GOVERNED BY FEDERAL RULE OF APPELLATE PROCEDURE 32.1 AND THIS COURT’S
LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A DOCUMENT FILED WITH
THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN ELECTRONIC
DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY
ORDER MUST SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

       At a stated term of the United States Court of Appeals for the Second Circuit, held at the
Daniel Patrick Moynihan Courthouse, 500 Pearl Street, in the City of New York, on the 28th day
of March, two thousand eleven.

Present:
         ROBERT A. KATZMANN,
         DENNY CHIN,
                     Circuit Judges,
         JOHN GLEESON,
                     District Judge.*
________________________________________________

CITIZENS AGAINST CASINO GAMBLING IN ERIE COUNTY (Joel Rose and Robert
Heffern, as Co-Chairpersons), REV. G. STANFORD BRATTON, D. MIN., Executive Director
of the Network of Religious Communities, THE NETWORK OF RELIGIOUS
COMMUNITIES, NATIONAL COALITION AGAINST GAMBLING EXPANSION,
PRESERVATION COALITION OF ERIE COUNTY, INC., COALITION AGAINST CASINO
GAMBLING IN NEW YORK-ACTION, INC., THE CAMPAIGN FOR BUFFALO, HISTORY
ARCHITECTURE & CULTURE, ASSEMBLYMAN SAM HOYT, ERIE COUNTY
LEGISLATOR MARIA WHYTE, JOHN McKENDRY, SHELLEY McKENDRY, DOMINIC J.
CARBONE, GEOFFREY D. BUTLER, ELIZABETH F. BARRETT, JULIE CLEARY, ERIN
C. DAVISON, ALICE E. PATTON, MAUREEN C. SCHAEFFER, DORA RICHARDSON, and
JOSEPHINE RUSH,

            Plaintiffs-Appellees,

                     v.                                                No. 10-2132-cv


        *
       The Honorable John Gleeson, United States District Judge for the Eastern District of
New York, sitting by designation.
PHILIP N. HOGEN, in his official capacity as Chairman of the National Indian Gaming
Commission, THE NATIONAL INDIAN GAMING COMMISSION, THE UNITED STATES
DEPARTMENT OF THE INTERIOR, KEN SALAZAR, in his official capacity as Secretary of
the Interior, BARACK OBAMA, in his official capacity as President of the United States,

            Defendants,

                   v.

SENECA NATION OF INDIANS,

         Intervenor-Defendant-Appellant.
________________________________________________

For Plaintiffs-Appellees:                 JANE BELLO BURKE (Cornelius D. Murray, on the
                                          brief), O’Connor and Aronowitz, P.C., Albany, N.Y.

For Intervenor-Defendant-Appellant:       CAROL E. HECKMAN, Harter Secrest & Emery LLP,
                                          Buffalo, N.Y. (Jeffrey A. Wadsworth, Harter Secrest &
                                          Emery LLP, Rochester, N.Y., and Riyaz Kanji, Kanji &
                                          Katzen, PLLC, Ann Arbor, Mich., on the brief)


        Appeal from the United States District Court for the Western District of New York

(Skretny, J.).

        ON CONSIDERATION WHEREOF, it is hereby ORDERED, ADJUDGED, and

DECREED that the order of the district court be and hereby is AFFIRMED.

        Intervenor-Defendant-Appellant Seneca Nation of Indians (the “Nation”) appeals from

the March 30, 2010 order of the district court denying the Nation’s motion for permissive

intervention pursuant to Federal Rule of Civil Procedure 24(b). On appeal, the Nation argues

that the district court improperly concluded that (1) the Nation’s motion to intervene was

untimely, (2) the Nation’s intervention potentially would delay the litigation and cause prejudice

to the existing parties, (3) the defendants would represent the interests of the Nation adequately,



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and (4) the Nation’s intervention would not contribute significantly to the full development of

the issues in this litigation. We assume the parties’ familiarity with the facts and procedural

history of this case.

        Permissive intervention pursuant to Rule 24(b) “is discretionary with the trial court.”

H.L. Hayden Co. of N.Y. v. Siemens Med. Sys., Inc., 797 F.2d 85, 89 (2d Cir. 1986). “In

exercising its discretion,” the court must “consider whether the intervention will unduly delay or

prejudice the adjudication of the rights of the original parties.” Id. (quoting Fed. R. Civ. P.

24(b)) (alteration and internal quotation marks omitted). “Additional relevant factors include the

nature and extent of the intervenors’ interests, the degree to which those interests are adequately

represented by other parties, and whether parties seeking intervention will significantly

contribute to full development of the underlying factual issues in the suit and to the just and

equitable adjudication of the legal questions presented.” Id. (internal quotation marks omitted).

See also In re Holocaust Victim Assets Litig., 225 F.3d 191, 202 (2d Cir. 2000) (“A district court

may grant a motion for permissive intervention if the application is timely and if the applicant’s

claim or defense and the main action have a question of law or fact in common. The court must

consider whether granting permissive intervention will unduly delay or prejudice the

adjudication of the rights of the existing parties.”) (internal citation and quotation marks

omitted).

        We review a district court’s denial of a motion to intervene for abuse of discretion. H.L.

Hayden Co., 797 F.2d at 89. “‘Reversal of a district court’s denial of permissive intervention is

a very rare bird indeed, so seldom seen as to be considered unique.’” AT&T Corp. v. Sprint

Corp., 407 F.3d 560, 562 (2d Cir. 2005) (quoting United States v. Pitney Bowes, Inc., 25 F.3d



                                                  3
66, 73 (2d Cir. 1994)). “The district court’s discretion under Rule 24(b)(2) is very broad. In

fact, a denial of permissive intervention has virtually never been reversed.” H.L. Hayden Co.,

797 F.2d at 89 (internal citation and quotation marks omitted).

       We begin with the district court’s determination that the Nation’s intervention would

“unduly delay or prejudice the adjudication of the original parties’ rights.” Fed. R. Civ. P.

24(b)(3). Our Circuit has stated that undue delay or prejudice is the “principal consideration” in

determining whether intervention is appropriate. U.S. Postal Serv. v. Brennan, 579 F.2d 188,

191 (2d Cir. 1978). Here, the Nation’s council resolution purporting to waive sovereign

immunity provides, among other things, that (1) the waiver is limited to “the three claims raised

in the Complaint filed March 31, 2009 . . . in [Citizens Against Casino Gambling in Erie County

v. Hogen, No. 09-CV-0291S (W.D.N.Y.) (‘CACGEC III’)],” (2) the waiver is inapplicable “to

any amendment or supplement to the Complaint, or to any cross-claim, counterclaim, third-party

claim, or claim of any other nature” in CACGEC III, (3) the Nation retains immunity “from civil

discovery or subpoena in CACGEC III or any other action,” (4) the Nation retains immunity in

connection with the plaintiffs’ request in the complaint for “other further and different relief.”

App’x 96. In view of these conditions, we find that the Nation’s limited purported waiver of

immunity has the potential to inject collateral issues into this litigation and prejudice the parties.

The district court therefore did not abuse its discretion in concluding that the potential for

prejudice and delay did not weigh in favor of the Nation’s intervention.

       We note also that the district court granted the Nation permission to parcipate as amicus

curiae. Accordingly, we conclude that the district court’s denial of the Nation’s motion for

permissive intervention was not an abuse of discretion. We therefore need not address whether



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the Nation’s motion to intervene was timely, the defendants would represent its interests

adequately, or the Nation’s intervention would contribute significantly to the full development of

the issues in this action. See, e.g., SEC v. Everest Mgmt. Corp., 475 F.2d 1236, 1240 (2d Cir.

1972) (affirming denial of permissive intervention on ground that addition of party would unduly

delay or prejudice the adjudication of the rights of the original parties).

           We have considered the Nation’s remaining arguments and find them to be without

merit. For the reasons stated herein, the order of the district court is AFFIRMED.

                                                   FOR THE COURT:
                                                   CATHERINE O’HAGAN WOLFE, CLERK




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