SPOTTSWOOD W. ROBINSON, III, Circuit Judge:
This appeal presented a motion by proposed intervenors, members of the United Mine Workers of America (UMWA), for summary reversal of an order of the District Court denying them leave to intervene as a matter of right
On the basis of written complaints submitted by members of the UMWA,
Title III of the LMRDA limits the purposes of trusteeships to "correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization."
The litigation here has spanned the terms of three Secretaries of Labor and did not come to trial until July, 1971, nearly seven years after its initiation. Following the trial, the District Court, on July 22, 1971, took the case under advisement. Appellants filed their first motion for leave to intervene on January 21, 1972, prior to issuance of its decision.
Appellants based their application for intervention on Trbovich v. United Mine Workers of America,
On March 10, 1972, the District Court issued an order in the instant case denying appellants' motion for intervention as untimely. For some unexplained reason, none of the parties received notice of this order,
On June 20, the District Court denied the second application for intervention on the earlier-stated ground that it was untimely and on the additional ground that the Secretary of Labor adequately represented appellants' interests. On July 18, appellants filed notice of this appeal, and thereafter their motion seeking summary reversal of that order.
The question whether this court has the jurisdiction to entertain this appeal was raised by the UMWA's motion to dismiss. It pointed to the expiration of the jurisdictional period for filing notice of appeal, when measured from the District Court's March 10 order denying appellants' first motion for intervention. But the UMWA failed to deal with the fact, demonstrated by the record, that appellants' notice of appeal specifically identifed as its subject the June 20 order denying their second motion for intervention, and that, as to the latter order, it was filed well within the allotted period.
Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal in a civil case be filed within thirty days of the entry of the order appealed from, unless the United States is a party, in which case a notice of appeal may be filed within sixty days of the order.
In the present case, owing to the apparent failure of the clerk to give them notice,
It is well settled that there is no jurisdiction to hear appeals not filed within the time limits set by Rule 4(a).
In the final analysis, the question of jurisdiction must be resolved by ascertaining whether the June 20 order, from which this appeal was taken, was merely a reinstatement of the court's March 10 ruling, or whether it constituted a new determination by the District Court reached under circumstances materially changed from those existing in March. If the later order was only an attempt to revive the earlier order, it did not start the time for appeal all over again.
On January 21, 1972, appellants sought intervention as of right or, in the alternative, permissive intervention. Their application was denied on March 10, and the only reason given by the court for the denial was untimeliness. On June 5, applicants renewed their motion for intervention.
In the four months which elapsed between the first and second applications, two events occurred which we believe warranted the District Court's reconsideration of the question of intervention. The more important of these was the entry of the District Court's opinion in the instant case on May 24, 1972, holding the trusteeships invalid and requesting the Secretary to file a proposed decree. Plainly this occurrence added new urgency and weight to appellants' application, since it bore out their claim that the trusteeships were unlawful, and without intervention neither they nor other union members would have a voice in fashioning the relief to be afforded in their districts.
The second significant event was the entry of the District Court's opinion on May 1, 1972, in the election case. As we have noted,
The June 20 order denying the second motion adhered to the earlier March 10 ruling that the request was untimely, but it added a second reason for the denial: a finding that the Secretary adequately represented the proposed intervenors' interests. Surely, with the inclusion of that additional reason in the June 20 order, ostensibly in light of the changed circumstances, it cannot be seriously contended that the court merely vacated and reinstated the March 10 ruling. We are satisfied that the June 20 order was not simply an attempt
On the merits, we are called upon to assess appellants' effort to intervene as a matter of right pursuant to Rule 24(a) (2)
The Court began its examination of the issues in Trbovich by observing that Title IV of the LMRDA vests solely in the Secretary the power to bring litigation challenging union elections.
Contrary to the arguments advanced by the Secretary, the Court concluded that by prohibiting union members from initiating election litigation, Congress sought only to guard against frivolous claims and against lawsuits in forums or at times different from those chosen by the Secretary.
Title III of the LMRDA, like the title which follows it, makes no mention of intervention by union members in litigation seeking to enforce its provisions. But it differs significantly from Title IV in that it permits actions challenging trusteeships to be commenced by union members themselves when the Secretary has brought none himself.
The reports of the Senate,
Having discovered no evidence reflecting a legislative purpose inimical to intervention by union members in the Secretary's suits, we must move on to a
To be sure, appellants' application for intervention was made after the action was tried, and some seven years after it was filed. But the proposed intervenors expressly disavowed any desire to reopen any previously-litigated question, and sought only to participate in the remedial, and if necessary the appellate, phases of the case. This limited goal does not appear to impose any untoward burden on the UMWA, the Secretary or the court.
It is clear on the face of appellants' claim that, not only as individuals but also as reformists
But one question, then, remains to be resolved, and that is whether, as the District Court held, appellants' interest in this suit is adequately represented by the Secretary. In approaching this problem, we are guided by the Court's admonition in Trbovich.
First, we note that this case has consumed more than seven years while three Secretaries of Labor have successively manned the helm. In these days of overburdened court dockets, we would hesitate to say that even the passage of years between complaint and judgment itself bespeaks lax advocacy. But we readily recognize that time is one factor to be considered here, where the districts involved have endured trusteeships for decades. The case at bar suffers by comparison with other litigation brought by union members to liquidate trusteeships which was concluded successfully in far less time.
Second, appellants contend that the proposed decree which the Secretary has submitted to the District Court will not restore full autonomy to the trusteed districts. As an example, they cite the failure of the Secretary to propose the popular election of members of executive boards in the affected districts. To the extent that this relief falls short of what appellants themselves would reasonably ask, the Secretary's representation of their interest in the remedial phase of the litigation is inadequate.
Finally, as the Supreme Court cogently observed in Trbovich with respect to suits brought by the Secretary under Title IV, the Secretary must also serve here in a dual capacity as a public official and as the union members' lawyer.
The right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard. We think appellants are entitled to intervene in the Secretary's suit in order to assure that their interest in effective dismantling of the unlawful trusteeships in their districts is safeguarded at this particularly crucial stage of the case. We accordingly hold that appellants must be granted intervention as of right, and our order disposing of this appeal so provides.
As the Advisory Committee Note to the 1946 amendment expressly states, its purpose was, in effect, to overturn Hill v. Hawes, supra, and the potential power it had given district courts to revive a right of appeal at any time. Advisory Committee Note to Fed.R.Civ.P. 77(d) (1946 amend.). See also Lord v. Helmandollar, supra note 27, 121 U.S.App.D.C. at 170, 348 F.2d at 782.
Advisory Committee Note to Fed.R.Civ.P. 77(d) (1946 amend.).
While most of the cases in this area deal with the district court's authority to reconsider a previously denied motion for summary judgment, the rule seems equally applicable to any motion involving facts which may change or may not even come to light until the litigation is well advanced. See 1B J. Moore, Federal Practice ¶ 0.404 at 451-452 (2d ed. 1965). An analogous rule is the familiar equitable principle which enables the court to retain jurisdiction over child-custody and -support cases where future events may warrant the modification of its decrees. See, e. g., Howze v. Howze, 128 U.S.App.D.C. 204, 205, 385 F.2d 986, 987 (1967); Dawn v. Dawn, 90 U.S.App.D.C. 226, 227-228, 194 F.2d 895, 896-897 (1952); Boone v. Boone, 80 U.S. App.D.C. 152, 154, 150 F.2d 153, 155 (1945); Cook v. Cook, 77 U.S.App.D.C. 388, 389, 135 F.2d 945, 946 (1943).
Denial of a motion seeking permissive intervention may only be appealed where the trial court has clearly abused its discretion. Brotherhood of R.R. Trainmen v. Baltimore & O. R.R., supra, 331 U.S. at 524-525, 67 S.Ct. 1387; Allen Calculators v. National Cash Register Co., 322 U.S. 137, 142, 64 S.Ct. 905, 88 L.Ed. 1188 (1944); Mendenhall v. Allen, supra, 342 F.2d at 327; Edmondson v. State of Nebraska, 383 F.2d 123, 127 (8th Cir. 1967); Bumgarner v. Ute Indian Tribe, 417 F.2d 1305, 1309 (10th Cir. 1969). But, of course, the jurisdictional question whether discretion has been abused requires a determination by the appellate court on the merits so where intervention has been sought under both 24 (a) and 24(b), an appeal may be taken either on the grounds that the district court denied intervention as of right or abused its discretion in denying permissive intervention. Fox v. Glickman Corp., 355 F.2d 161, 163 n. 2 (2d Cir. 1965), cert. denied, Levy v. Glickman Corp., 384 U.S. 960, 86 S.Ct. 1585, 16 L.Ed.2d 672 (1966); 3B J. Moore, Federal Practice ¶ 24.15 at 24-561-65 (2d ed. 1969). The only consequence of the restriction on appealability of Rule 24(b) motions is that on finding the district court's determination to be correct, the appellate court will dismiss the appeal rather than affirm. Levin v. Ruby Trading Corp., supra, 333 F.2d at 594.