                             UNITED STATES COURT OF APPEALS
                                  FOR THE FIFTH CIRCUIT

                                         ___________________

                                            No. 00-20293
                                         ___________________

                                             Deneen Ford,
                                                                                   Plaintiff-Appellee,

                                                 versus

                                 City of Hunstville; Hank Eckhardt,
                                                                              Defendants-Appellees,

                                                 versus

                                         The Huntsville Item,
                                                                                  Movant-Appellant.

                 ____________________________________________________

                         Appeal from the United States District Court
                              for the Southern District of Texas
                                       (H-99-CV-2384)
                 ____________________________________________________
                                       January 22, 2001

Before: KENNEDY*, JONES, and DeMOSS, Circuit Judges.

PER CURIAM:**

       Appellant The Huntsville Item, a local newspaper, appeals from the district court’s denial of

its motion to intervene and motion to vacate an agreed order prohibiting disclosure of settlement

documents in the underlying lawsuit between appellees, plaintiff Deneen Ford and defendant City of

Huntsville. On appeal, appellant alleges that (1) it had standing to intervene in the original action,


       *
           Circuit Judge of the Sixth Circuit, sitting by designation.
       **
          Pursuant to 5th Cir. R. 47.5, the court has determined that this opinion should not be
published and is not precedent except under the limited circumstances set forth in 5th Cir. Rule 47.5.4.
and (2) the district court erred in issuing the confidentiality order. For the reasons stated below, we

grant appellant’s motion to intervene and vacate the district court’s confidentiality order.

                                           I. Background

       Deneen Ford filed the underlying lawsuit against the city of Huntsville, Texas and police

chief Hank Eckhardt claiming that her employer, the Huntsville Police Department, racially and

sexually discriminated against her. The local newspaper, The Huntsville Item, reported on the

progress of the suit from its filing. The parties to the suit ultimately reached a settlement, and on

December 22, 1999, the parties filed an Agreed Motion to Dismiss in the district court. (R.55.)

The district court entered an Agreed Order of Dismissal on December 27, 1999. At the initial

request of plaintiff Ford, the parties also jointly submitted an Agreed Order of Confidentiality,

prohibiting disclosure of the terms of the settlement. The district court issued the Agreed Order

of Confidentiality on December 28, 1999.

       On January 19, 2000, appellant The Huntsville Item moved to intervene in the original

lawsuit and to vacate the Agreed Order of Confidentiality, alleging that the confidentiality order

was impermissible under the Texas Public Information Act (Texas Act) which provides that a

settlement agreement to which a governmental body is a party is public information.1 The district

court summarily denied appellant’s Motion to Intervene and Motion to Vacate Agreed Order on

February 16, 2000, without a hearing and without offering any findings or conclusions.

                                           II. Discussion



       1
          Section 552.022(a)(18) provides that “a settlement agreement to which a governmental body
is a party” is “public information and not excepted from required disclosure under this chapter unless
[it is] expressly confidential under other law.” Tex. Gov’t Code Ann. § 552.022(a)(18) (Vernon
1999).

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        Appellant raises two issues on appeal. First, appellant challenges the district court’s denial

of appellant’s motion to intervene. Secondly, appellant claims that the district court erred in

issuing the confidentiality order protecting the underlying settlement agreement.

                                           A. Intervention

        Appellant alleges that the district court erred in denying its motion to intervene as of right

under Fed. R. Civ. P. 24(a)(2), and that the district court abused its discretion in denying

appellant’s motion under the standard for permissive intervention under Fed. R. Civ. P. 24(b)(2).

The district court made no findings of fact or conclusions of law to support its denial of

appellant’s motion to intervene.

        A district court’s denial of intervention as of right is reviewed de novo. Taylor

Communications Group, Inc. v. Southwestern Bell Tel. Co., 172 F.3d 385, 387 (5th Cir. 1999).

Intervention as of right is governed by Rule 24(a) which provides that “[u]pon timely application

anyone shall be permitted to intervene in an action . . . when the applicant claims an interest

relating to the property or transaction which is the subject of the action and 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, unless the applicant’s interest is adequately represented

by existing parties.” Fed. R. Civ. P. 24(a)(2). To intervene as of right under Rule 24(a)(2),

appellant must meet a four prong test. Each of the following four requirements must be satisfied:

        (1) the application for intervention must be timely; (2) the applicant must have an
        interest relating to the property or transaction which is the subject of the action;
        (3) the applicant must be so situated that the disposition of the action may, as a
        practical matter, impair his ability to protect that interest; (4) the applicant’s
        interest must be inadequately represented by the existing parties to the suit.

Taylor, 172 F.3d at 387.


                                                 -3-
       Under the first requirement, the district court should have considered four factors to

determine whether appellant’s application for intervention was timely. The four factors are:

       (1) The length of time during which the would-be intervenor actually knew or
       reasonably should have known of its interest in the case before it petitioned for
       leave to intervene; (2) the extent of the prejudice that the existing parties to the
       litigation may suffer as a result of the would-be intervenor’s failure to apply for
       intervention as soon as it knew or reasonably should have known of its interest in
       the case; (3) the extent of the prejudice that the would-be intervenor may suffer if
       intervention is denied; and (4) the existence of unusual circumstances militating
       either for or against a determination that the application is timely.

Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994). Although a district court’s

determination regarding the timeliness of intervention is typically reviewed for abuse of discretion,

it is reviewed de novo where the district court failed to make any findings regarding its timeliness

conclusion. Sierra Club, 18 F.3d at 1205 n.2. In the present case, the district court did not

address the question of timeliness.

       Appellant filed its motion to intervene on January 19, 2000, twenty-two days after the

entry of the confidentiality order on December 28, 1999. Appellees, the original parties to the

case, filed their motion for the confidentiality order on December 27, 1999. (R.14.) Appellant’s

interest in the case is limited to obtaining access to the settlement documents. Appellant had no

reason to think that such access would be denied until the confidentiality agreement was

proposed. Therefore, appellant’s interest in the case did not arise until appellees filed their joint

motion for the confidentiality agreement. As a result, there were only twenty-three days between

the time when appellant could have learned of its interest in the case and the time at which it filed

its motion to intervene. In Stallworth, the Fifth Circuit applied the four factors listed above and

concluded generally that “[b]y filing their petition less than one month after learning of their



                                                 -4-
interest in this case, the appellants discharged their duty to act quickly.” Id. at 267. In addition,

this court has emphasized that the relevant prejudice is that created by the intervenor’s delay in

seeking to intervene after it learns of its interest, not prejudice to existing parties if intervention is

allowed. Ceres Gulf v. Cooper, 957 F.2d 1199, 1203 (5th Cir. 1992). No apparent prejudice to

the original parties resulted from appellant filing its motion in January as opposed to December,

and no such prejudice was alleged. In addition, because appellant seeks only to litigate the issue

of the confidentiality order and not to reopen the merits of the dispute between the original

parties, even a greater delay in the intervention would not have prejudiced the parties. See Pansy

v. Borough of Stroudsburg, 23 F.3d 772, 780 (3d Cir. 1994). Under the third timeliness factor,

appellant could suffer prejudice if its motion is denied, because if it brings a separate suit to gain

access to the information under the Texas Act, any potential remedy will be restricted by the

confidentiality order issued here. There are no unusual circumstances to be considered under the

fourth factor above. Thus, we conclude that appellant’s motion to intervene was timely.

        The second condition to intervention as of right requires that appellant have an interest

relating to the property or transaction that is the subject of the underlying action. In the context

of intervention, the Fifth Circuit has warned against defining “property or transaction” too

narrowly. Ceres Gulf, 957 F.2d at 1203. This court has held that a news agency has a legal

interest in challenging a confidentiality order, stating that “members of the news media, although

not parties to litigation, can appeal court closure orders or confidentiality orders under the

collateral order doctrine.” Davis v. East Baton Rouge Parish School District, 78 F.3d 920, 926

(5th Cir. 1996). More specifically, appellant has a legal interest arising under the Texas Act,

section 552.022(a)(18), which provides that “a settlement agreement to which a governmental


                                                   -5-
body is a party,” is “public information and [is] not excepted from required disclosure under this

chapter unless [it is] expressly confidential under other law.” Tex. Gov’t Code Ann. §

552.022(a)(18) (Vernon 1999).

        The Third Circuit has explained that “in determining whether the Newspapers have

standing, we need not determine that the Newspapers will ultimately obtain access to the sought-

after Settlement Agreement. We need only find that the Order of Confidentiality being challenged

presents an obstacle to the Newspapers’ attempt to obtain access.” Pansy, 23 F.3d at 777. In the

present case, the confidentiality order issued by the district court presents an obstacle to

appellant’s attempt to obtain the settlement agreement. Standing to challenge the confidentiality

order demonstrates the interest required to intervene under Rule 24(a)(2). For these reasons, we

conclude that appellant has an interest relating to the underlying action and satisfies the second

condition for intervention as of right.

        The third condition for intervention as of right requires that the disposition of the case

may impair the applicant’s ability to protect its interest. The confidentiality order which appellant

wants to challenge conflicts with appellants right to access information under the statute. Even

without reaching a conclusion about the validity of the confidentiality order, its existence certainly

would impede appellant’s ability to bring suit successfully under the Texas Act to gain access to

the settlement agreement.

        Finally, the last condition for intervention as of right requires that the interests of the

applicant are inadequately represented by the existing parties. The original parties in this case

jointly moved for the confidentiality order, advocating a position contrary to the interest of

appellant. Therefore, the final condition is satisfied.


                                                  -6-
       Appellant satisfies all four prongs of the test for intervention as of right. As a result, it is

not necessary for us to evaluate appellant’s alternative argument that it satisfied the requirements

for permissive intervention. The district court erred in refusing appellant’s request to intervene.

We reverse the district court and hold that appellant may intervene as of right under Rule 24(a)(2)

in order to challenge the confidentiality order issued by the district court.

                                     B. Confidentiality Order

       Upon a joint motion by the parties, the district court entered the Agreed Order prohibiting

the parties from disclosing the settlement documents. The full text of the order is as follows:

       Pursuant to Tex. Gov’t Code Ann. § 552.107(2), it is ORDERED that disclosure
       of the settlement documents associated with Plaintiff Deneen Ford’s suit against
       City of Huntsville, Texas and Hank Eckhardt (“Defendants”) is hereby prohibited.

(R.63.) The district court offered no findings or explanation for the confidentiality order nor did

the parties submit any reasons for its entry beyond their agreement. We review the district court’s

grant of a confidentiality order for abuse of discretion, see Davis, 78 F.3d at 930, Doe v. Stegall,

653 F2d 180, 184 (5th Cir. 1981), but we review the district court’s application of the appropriate

legal standard de novo.

       We should note that we are not asked to grant appellant access to the settlement

documents. Rather, we are asked to determine the validity of the district court’s confidentiality

order. The validity of that order, however, will determine whether appellant will be successful in

obtaining the requested documents.2



       2
          If the confidentiality order is valid, a court’s ability to order access to the settlement
documents would be limited by this federal order. In the present case, further legal action will likely
not be required because appellee City of Huntsville has st ated that if the confidentiality order is
vacated, it will make the settlement documents public. (Appellee’s Br. 5.)

                                                 -7-
        In issuing the confidentiality order, the district court cited to section 552.107(2) of the

Texas statute which provides that “[i]nformation is excepted from the requirements of Section

552.021 if: . . . a court by order has prohibited disclosure of the information.” Section 552.021

provides that “[p]ublic information is available to the public at a minimum during the normal

business hours of the governmental body.” Section 552.107(2) establishes an exception to

required disclosure under the Texas Act. Section 552.022(a), however, lists categories of

information which “are public information and are not excepted from required disclosure under

this chapter unless they are expressly confidential under other law.” One of these listed categories

is “a settlement agreement to which a governmental body is a party.” Tex. Gov’t Code Ann. §

552.022(a)(18). Thus, disclosure of a settlement agreement does not fall within the exception

under section 552.107(2). Rather, settlement information involving a governmental body is

subject to required disclosure under Texas Law unless expressly made confidential by other law.

        That conclusion does not end our inquiry, however, because we must determine what

discretion a federal judge has to issue a confidentiality order in litigation between a state and its

employee in light of a conflicting state statute. In Davis, the Fifth Circuit addressed a case in

which a news agency sought to invalidate a court order permitting a school board to meet in

private sessions to discuss a desegregation plan, alleging that the order permitted the board to

circumvent requirements of the Louisiana Open Meetings Law, L.R.S. § 42:4.1-11 (West 1990).

78 F.3d at 930. Without stating an opinion as whether the private meetings would comply with

the statute, the court held that “[i]n entering a confidentiality order protecting a public entity, or

an order such as this requiring a public entity to meet in secrecy, the district court should consider

the effect of the order on state freedom of information laws.” Davis, 78 F.3d at 931. The court


                                                  -8-
also cited the Third Circuit Pansy case with approval, in which the Third Circuit held that “where

a governmental entity is a party to litigation, no . . . confidentiality order shall be entered without

consideration of its effect on disclosure of governmental records to the public under state and

federal freedom of information laws.” Id. (citing Pansy, 23 F.3d at 791). The Pansy court further

held that “where it is likely that information is accessible under a relevant freedom of information

law, a strong presumption exists against granting or maintaining an order of confidentiality whose

scope would prevent disclosure of that information pursuant to the relevant freedom of

information law.” Pansy, 23 F.3d at 791. Explaining the appropriate legal standard, the Davis

court held that “the district court made no effort to explain why the need for confidential Board

meetings outweighed the news agencies’ interest in attending Board meetings protected by the

Louisiana Open Meetings Act.” Davis, 78 F.3d at 931. Similarly in the present case, the district

court gave no indication that it considered section 552.022(a)(18) of the Texas Act, and neither

the court nor the parties offered any explanation as to the need for confidentiality let alone a need

that outweighed appellant’s interest in gaining access to information protected by the Texas Act.

On appeal, no one appeared or filed a brief on behalf of plaintiff Ford in support of maintaining

the confidentiality order. The City of Huntsville, when questioned at oral argument, could point

to no reason for confidentiality except that plaintiff had requested the agreed order, and the City

acknowledged that plaintiff had not given any reason for her request. Thus, the Davis court’s

ultimate conclusion applies to the present case:




                                                   -9-
        In short, the district court entered a sweeping order requiring a public entity to
        conduct confidential meetings which may or may not comply with state law. The
        court should not have entered this order without considering whether the meetings
        that it ordered complied with the Louisiana Open Meetings Law, or demonstrating
        compelling reasons for preempting Louisiana law. We conclude that the district
        court abused its discretion in entering the . . . order without considering its effect
        on Louisiana law.

Davis, 78 F.3d at 931. While Texas law is not directly binding on a federal court’s ability to issue

orders, the Fifth Circuit has clearly held that, at a minimum, the district court was obliged to

consider the effect of its order on state law. In the present case, the district court abused its

discretion by entering the confidentiality order without considering section 552.022(a)(18) of the

Texas Act. In light of the public information status provided to the settlement by the Texas Act,

the district court also erred by failing to require some competing interest which demonstrates a

compelling reason for entering the order despite the state law. Thus, as the court did in Davis, we

vacate the district court’s confidentiality order.

                                           III. Conclusion

        For the reasons stated above, we reverse the district court and hold that appellant is

entitled to intervene, and further we vacate the confidentiality order entered by the district court.

        No costs are awarded on appeal.




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