                  UNITED STATES DISTRICT COURT
                  FOR THE DISTRICT OF COLUMBIA

______________________________
                              )
JAMES ROANE, JR., et al.,     )
                              )
          Plaintiffs,         )
                              )
          v.                  )   Civil Action No. 05-2337 (RWR)
                              )
ALBERTO GONZALES, et al.,     )
                              )
          Defendants.         )
                              )
______________________________)

                        MEMORANDUM OPINION

     Jeffrey Paul, an inmate on death row facing execution by the

federal lethal injection protocol, has moved for leave to

intervene under Federal Rule of Civil Procedure 24 and for a

preliminary injunction barring both the scheduling of his

execution and his execution, challenging the federal lethal

injection protocol under the Fifth and Eighth Amendments and the

Administrative Procedure Act (“APA”), 5 U.S.C. §§ 551 et seq.

The plaintiffs do not oppose intervention, but the defendants

oppose both motions.   Because Paul has failed to demonstrate that

an impaired interest would stem from being denied intervention

rather than from his own failure to timely protect his interest,

or that his interests which are virtually indistinguishable from

those of the current plaintiffs would be inadequately

represented, his motion will be denied.
                                  -2-

                              BACKGROUND

     The plaintiffs in this case were each sentenced to death on

one or more of the capital murder charges of which they were

convicted.    Roane v. Holder, 607 F. Supp. 2d 216, 219 (D.D.C.

2009).    The original complaint, alleging constitutional and

statutory violations caused by the federal government’s intended

use of a lethal injection protocol that allegedly exposes inmates

to a substantial risk of severe pain, was filed on December 6,

2005.    (See Compl. at 3.)   On February 2, 2006, Plaintiffs James

Roane, Richard Tipton and Cory Johnson moved, in part, for a

preliminary injunction barring their execution.    (See Pls.’ Mot.

for a Stay, and for a Prelim. Inj. Barring Their Execution at 1.)

The defendants did not oppose the entry of a preliminary

injunction with respect to Roane, Tipton and Johnson, and the

plaintiffs’ motion was granted.    See Roane v. Gonzales, Civil

Action No. 05-2337 (RWR), 2006 U.S. Dist. LEXIS 31781, at *1-2

(D.D.C. Feb. 27, 2006).    Plaintiff Bruce Webster moved unopposed

to intervene in January 2007 and for a preliminary injunction in

February 2007.    (See Webster’s Unopposed Mot. to Intervene as Pl.

at 1; Webster’s Unopposed Mot. for a Prel. Inj. Barring His

Execution at 1.)    Both motions were granted as unopposed.   Two

additional plaintiffs, Anthony Battle and Orlando Hall, moved

unopposed to intervene in April 2007 and for a preliminary

injunction barring the defendants from setting an execution date
                                 -3-

in their case.   (See Unopposed Mot. of Pl. Anthony Battle for

Prelim. Inj.; Pl.’s Hall’s Unopposed Mot. for a Prelim. Inj. at

1.)   Those motions were granted as unopposed.   On October 6,

2009, Jeffrey Paul moved to intervene and for a preliminary

injunction, which the defendants have opposed.

                            DISCUSSION

I.    INTERVENTION AS OF RIGHT

      Under Rule 24(a), intervention as a matter of right is

granted when the movant

      claims an interest relating to the property or
      transaction that is the subject of the action, and is
      so situated that disposing of the action may as a
      practical matter impair or impede the movant’s ability
      to protect its interest, unless existing parties
      adequately represent that interest.

Fed. R. Civ. P. 24(a)(2).   The four prerequisites to intervention

as of right are: “‘(1) the application to intervene must be

timely; (2) the applicant must demonstrate a legally protected

interest in the action; (3) the action must threaten to impair

that interest; and (4) no party to the action can be an adequate

representative of the applicant’s interests.’”    Karsner v.

Lothian, 532 F.3d 876, 885 (D.C. Cir. 2008) (quoting SEC v.

Prudential Sec. Inc., 136 F.3d 153, 156 (D.C. Cir. 1998)).1      For


      1
       Also, “‘because a Rule 24 intervenor seeks to participate
on an equal footing with the original parties to the suit,’” the
applicant must establish that he has standing to participate in
the action. Fund for Animals, Inc. v. Norton, 322 F.3d 728, 732
(D.C. Cir. 2003) (quoting City of Cleveland, Ohio v. Nuclear
Regulatory Comm’n, 17 F.3d 1515, 1517 (D.C. Cir. 1994)). The
                                -4-

reasons that do not appear in the record, the defendants address

solely the third factor.   Since all three interest factors and

the timeliness factor are interrelated, all will be considered

here.

     Requiring the presence of a legally protected interest

serves “primarily [as] a practical guide to disposing of lawsuits

by involving as many apparently concerned persons as is

compatible with efficiency and due process.”   Glamis Imperial

Corp. v. U.S. Dep’t. of the Interior, Civil Action No. 01-530

(RMU), 2001 WL 1704305, at *3 (D.D.C. Nov. 13, 2001) (internal

quotation marks omitted); see also S. Utah Wilderness Alliance v.

Norton, Civil Action No. 01-2518 (CKK), 2002 WL 32617198, at *5

(D.D.C. June 28, 2002) (applying a “liberal approach” to the Rule

24(a) analysis).   It refers “not to any interest the applicant

can put forward, but only to a legally protectable one.”   City of

Cleveland, Ohio v. Nuclear Regulatory Comm’n, 17 F.3d 1515, 1517

(D.C. Cir. 1994) (emphasis in original).

     Paul’s asserted interest in the subject matter of the case

is identical to that of the existing plaintiffs, namely, avoiding

execution by an allegedly flawed lethal injection protocol.

(Mem. in Supp. of Pl. Jeffrey Paul’s Mot. to Intervene (“Paul’s


parties do not discuss standing, and Paul’s Article III and
prudential standing appear not to be in dispute. See Fund for
Animals, 322 F.3d at 732-33 (discussing Article III standing);
Colorado Wild Horse and Burro Coalition, Inc. v. Salazar, 639 F.
Supp. 2d 87, 92 (D.D.C. 2009) (discussing prudential standing).
                                 -5-

Mem.”) at 6-7.)   Citing the plurality opinion in Baze v. Rees,

553 U.S. 35 (2008), Paul states that avoiding execution by an

allegedly flawed lethal injection method is a legally protectable

interest because “the Supreme Court [has] held than an inmate

alleges a constitutional violation by asserting . . . a

‘substantial risk’ of ‘maladministration’ of the government’s

intended execution procedures, in a manner that results in a

substantial danger of inadequate anesthesia.”     (Paul’s Mem. at 7

(citing Baze, 553 U.S. at 41, 48-50, 53).)   Paul and the existing

plaintiffs assert, in part, that unless the drug is “administered

by a qualified individual, the condemned person may . . .

[experience] horrific pain[.]”   (Compl. ¶ 37.)   As Paul has amply

demonstrated a clear interest in the outcome of this suit, this

factor supports intervention.

     However Paul does not find such support in the other three

factors.   Whether a proposed intervenor is “so situated that

disposing of the action may as a practical matter impair or

impede [his] ability to protect [his] interest,” Fed. R. Civ. P.

24(a)(2), is determined by “looking to the practical consequences

of denying intervention, even where the possibility of future

challenge to the regulation remain[s] available.”    Fund for

Animals, Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003)

(internal quotation marks omitted) (alteration in original).

Paul certainly does not refute the possibility of a future
                                 -6-

challenge.   He asserts no statute of limitations bar.   (Paul’s

Reply at 2 n.1.)   Indeed, Paul argues only that if his “motion

for intervention is denied, and [he] is forced to bring his own

parallel action, he could be negatively impacted by the

resolution of the present case.”   (Paul’s Mem. at 8.)   The

defendants counter that Paul “cannot demonstrate that disposition

of this suit will impede his ability to protect his interest”

because he “could have clearly sought the relief that he is

requesting . . . [in] the jurisdiction in which he committed his

crime[.]”    (Defs.’ Opp’n to Jeffrey Paul’s Mots. to Intervene and

for a Preliminary Injunction at 4.)

     If the plaintiffs were to prevail here, the federal

government could be barred from employing the lethal injection

protocol to carry out any capital sentences, benefitting Paul.

If the defendants were to prevail in this action, no such bar

would prevent Paul from being subject to lethal injection under

the federal protocol.   Paul’s interest, then, may be impaired by

an unfavorable outcome of this litigation in the sense that

countering such a ruling in a subsequent case could be “difficult

and burdensome.”   Fund for Animals, 322 F.3d at 735.

     It is not, however, denying Paul’s motion to intervene that

will have impaired Paul from protecting his interest; rather it

is Paul’s failure to file timely his own method of execution

challenge that will have impaired his interest.   Paul’s direct
                                -7-

appeal concluded in 2001.   He cites to no factual or legal basis

justifying his failure to raise a method of execution challenge

then.   Nor does he justify his failure to intervene in this suit

at or near its onset.

     In ruling on a motion to intervene, “the Court must first

determine whether the application to intervene is timely.”     Cooey

v. Strickland, No. 2:04-cv-1156, 2008 WL 5111190, at *2 (S.D.

Ohio Dec. 2, 2008).

     [T]imeliness is to be judged in consideration of all
     the circumstances, especially weighing the factors of
     time elapsed since the inception of the suit, the
     purpose for which intervention is sought, the need for
     intervention as a means of preserving the applicant's
     rights, and the probability of prejudice to those
     already parties in the case.

United States v. AT&T, 642 F.2d 1285, 1295 (D.C. Cir. 1980)

(citing Moten v. Bricklayers, Masons and Plasterers Int’l Union

of Am., 543 F.2d 224, 228 (D.C. Cir. 1976)).

     Paul argues that his motion to intervene is timely for two

central reasons.   First, he states that “this Court has not yet

decided the merits of Plaintiffs’ claims” and that intervention

“will neither alter any of the issues presently before the Court,

nor delay the litigation or ultimate disposition of the issues.”

(Paul’s Mem at 4, 5.)   It is possible that such speculation,

while risky, could be right.   While the action was filed in

December 2005, the existing parties have had several status

conferences and have filed numerous motions, including one
                                 -8-

dispositive motion that already has been decided, and discovery

is well down the road toward completion, it may be that Paul’s

intervention would not disrupt the current litigation to the

detriment of the existing parties.     Cf. Cooey, 2008 WL 5111190,

at *4 (permitting intervention because the litigation had not

reached the discovery stage and the pretrial conference had yet

to be held).

     Paul also argues that his motion is timely because it did

not become ripe “until . . . the day [his] Petition for Writ of

Certiorari [to review the denial of his 28 U.S.C. § 2255

petition] was denied.”   (Paul’s Mem. at 5.)   He offers, however,

no authority whatsoever for that proposition.    Paul was sentenced

to death in 1997, and he exhausted his direct appeal in 2001.

(Id. at 2.)    Contrary to Paul’s argument, Paul could have been in

a position to challenge the method of his execution in 2001, see,

e.g., Neville v. Johnson, 440 F.3d 221, 222 (5th Cir. 2006) (per

curiam) (noting that a method of execution challenge may be filed

after the plaintiff’s conviction has become final on direct

review), and could have sought intervention in this case well

before now.    Moore v. Rees, No. 06-CV-22-KKC, 2007 WL 2955947, at

*1 (E.D. Ky. Oct. 1, 2007) (noting that it is reasonable for a

defendant to seek intervention at the conclusion of his direct

appeal).   Indeed, in November 2003, there was specific

information indicating that the federal government’s method of
                                -9-

execution used too little anesthetic, and information regarding

the use of the femoral vein access and the employment of persons

who are responsible for previous serious errors in federal

executions was available in June 2007.    (Pls.’ Opp’n to Renewed

Mot. for J. on the Pleadings at 20.)

     Nor is it clear that Paul has carried his minimal burden,

see Trbovich v. United Mine Workers of Am., 404 U.S. 528, 538

n.10 (1972), of showing that if he cannot intervene, his interest

will be inadequately represented.     An applicant ordinarily should

be permitted to intervene as of right “unless it is clear that

the party will provide adequate representation for the absentee.”

7C Charles Alan Wright et al., Fed. Practice & Proc. § 1909 (3d

ed. 2007).   “Although there may be a partial congruence of

interests, that does not guarantee the adequacy of

representation.”   Fund for Animals, 322 F.3d at 737.   In this

case, it seems clear that Paul and the plaintiffs have far more

than a partial congruence of interest in demonstrating a

constitutional infirmity in the lethal injection protocol.    The

congruence is virtually, if not totally, complete.    Because Paul

has failed to satisfy his burden of demonstrating his entitlement

to intervene as of right, his motion to intervene under Rule

24(a) will be denied.
                                -10-

II.   PERMISSIVE INTERVENTION

      In the alternative, Paul moves to intervene under Rule

24(b).   Permissive intervention, under Rule 24(b), “is an

inherently discretionary enterprise.”   EEOC v. Nat’l Children’s

Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998).    Rule 24(b)

provides that:

      [o]n timely motion, the court may permit anyone to
      intervene who . . . has a claim or defense that shares
      with the main action a common question of law or
      fact. . . . In exercising its discretion, the court must
      consider whether the intervention will unduly delay or
      prejudice the adjudication of the original parties’ rights.

Fed. R. Civ. P. 24(b) (emphasis added); see also EEOC, 146 F.3d

at 1046.   In assessing whether an applicant’s claim shares with

the main action a common question of law or fact, a court

examines whether the “‘facts necessary to assert [the

intervenor’s] claim are essential[ly] the same facts as those

necessary to establish [an existing party’s] claim.’”    Butte

County, Cal. v. Hogen, Civil Action No. 08-519 (HHK)(AK), 2008 WL

2410407, at *2 (D.D.C. June 16, 2008) (first and last alteration

in original).    Further, while Rule 24(b)’s timeliness analysis

largely mirrors that of Rule 24(a), see Cooey, 2008 WL 5111190,

at *2; see also Chippewa Cree Tribe of Rocky Boy’s Reservation v.

United States, 85 Fed. Cl. 646, 660 (Fed. Cl. 2009) (noting that

“[b]ecause the court has already decided that Proposed

Intervenor’s Motion does not meet the timeliness requirement

[under Rule 24(a)] . . . , permissive intervention is
                               -11-

inappropriate”), many courts analyze the timeliness factor under

Rule 24(b) more strictly than they analyze timeliness under Rule

24(a).   See League of United Latin Am. Citizens v. Wilson, 131

F.3d 1297, 1308 (9th Cir. 1997) (“In the context of permissive

intervention . . . , we analyze the timeliness element more

strictly than we do with intervention as of right.”); Kukui

Gardens Corp. v. Holco Capital Group, Inc., 261 F.R.D. 523, 535

(D. Hawaii 2009); In re United Minerals and Grains Corp., 76 B.R.

991, 1000 (E.D. Pa. 1987) (“[T]he requirement of timeliness is

somewhat more strictly construed in a 24(b) motion than in a

24(a) motion.”).

     Here, Paul’s claim has common questions of law and fact with

the main action because he, like the existing plaintiffs, faces

execution under the federal lethal injection protocol and seeks

to challenge the protocol on the same bases as those asserted by

the existing plaintiffs.   Paul’s motion, however, is untimely, as

he has waited nearly four years after this action was filed to

seek intervention.   Paul’s failure to timely file his motion

weighs heavily against intervention, and his motion under Rule

24(b) will be denied.

                            CONCLUSION

      Because Paul has failed to timely file his motion to

intervene, and to demonstrate that his interest would be impaired

by being denied intervention -- rather than having been impaired
                               -12-

by his own failure to timely protect his interest –- and that he

would be inadequately represented by the current plaintiffs, his

motion will be denied.2   A separate Order accompanies this

Memorandum Opinion.

     SIGNED this 1st day of July, 2010.



                                       /s/
                               RICHARD W. ROBERTS
                               United States District Judge




     2
       Because Paul’s motion to intervene will be denied, the
merits of his request for a preliminary injunction will not be
addressed.
