Flying J Incorporated v. Wisconsin Petroleum Marketers

In the
United States Court of Appeals
For the Seventh Circuit
No. 09-1883
F LYING J, INC.,
Plaintiff-Appellee,
v.
J.B. V AN H OLLEN, Attorney General of Wisconsin, et al.,
Defendants.
W ISCONSIN P ETROLEUM M ARKETERS
& C ONVENIENCE S TORE A SSOCIATION,
Proposed Intervenor-Appellant.
Appeal from the United States District Court
for the Eastern District of Wisconsin.
No. 08-C-110—Rudolph T. Randa, Chief Judge.
A RGUED JUNE 2, 2009—D ECIDED A UGUST 20, 2009
Before P OSNER, R IPPLE, and K ANNE, Circuit Judges.
P OSNER, Circuit Judge. The Wisconsin Uniform Sales
Act, Wis. Stat. § 100.30, forbids retail sellers of gasoline
to sell their product below cost plus a markup equal to
the higher of 6 percent of the retailer’s cost or 9.18 percent
2 No. 09-1883
of the wholesale price of the product. The Act authorizes
injunctive and monetary remedies both in suits by the
state, and in private suits by persons injured by a viola-
tion of the Act. Id., §§ 100.30(4), (5), (5m). Flying J, which
sells gasoline at truck stops, brought this suit in
federal court against the state to enjoin the enforcement
of the Act, on the ground that it is preempted by the
Sherman Act. The district court agreed that it
was preempted and issued the injunction—whereupon
the state threw in the towel and decided not to appeal.
Before the 30-day limit for filing a notice of appeal had
expired, an association of Wisconsin gasoline dealers
moved for leave to intervene in the district court both as
a matter of right under Rule 24(a)(2) of the Federal Rules
of Civil Procedure and alternatively as a permissive
intervenor under Rule 24(b)(1)(B). It wanted to intervene
in order to be able both to ask the district judge to re-
consider his decision and, if he refused to change it, to
appeal. The district judge extended the time for filing
the notice of appeal in order to give himself time to con-
sider the motion. Before the extended deadline for filing
an appeal expired, he denied the motion to intervene.
The appeal asks us to reverse that denial and either
request the parties to submit briefs on the merits of the
district court’s decision, or remand the case with direc-
tions that the district judge reconsider his decision in
light of the arguments made in the association’s motion
to reconsider.
The judge denied intervention as of right on the ground
that the association (which is to say its members, since the
No. 09-1883 3
association’s standing to litigate the case is derivative
from their standing) lacks the required interest in the
litigation to authorize such intervention, and alternatively
that the motion to intervene was not timely, as the rule
requires though without specifying a time limit. The judge
denied the request for permissive intervention on the
ground that it was untimely also.
No one can maintain an action in a federal court, includ-
ing an appeal, unless he has standing to sue, in the
sense required by Article III of the Constitution—that is,
unless he can show injury (in a special sense, noted
below) and that he would benefit from a decision in his
favor. But the interest required by Article III is not
enough by itself to allow a person to intervene in a
federal suit and thus become a party to it. There must be
more. Rule 24(a)(2) requires that the applicant claim “an
interest relating to the property or transaction that is
the subject of the action.” “Interest” is not defined, but
the case law makes clear that more than the minimum
Article III interest is required. Cases say for example that
a mere “economic interest” is not enough. E.g., In re Lease
Oil Antitrust Litigation, 2009 WL 1479410, at *5-6 (5th Cir.
May 28, 2009); Mountain Top Condominium Ass’n v. Dave
Stabbert Master Builder, Inc., 72 F.3d 361, 366 (3d Cir. 1995);
cf. Reich v. ABC/York-Estes Corp., 64 F.3d 316, 322-23 (7th
Cir. 1995). While that is a confusing formulation—most
civil litigation is based on nothing more than an “economic
interest”—all that the cases mean is that the fact that
you might anticipate a benefit from a judgment in favor
of one of the parties to a lawsuit—maybe you’re a creditor
of one of them—does not entitle you to intervene in their
4 No. 09-1883
suit. United States v. Alisal Water Corp., 370 F.3d 915, 920-
21 (9th Cir. 2004); Mothersill D.I.S.C. Corp. v. Petroleos
Mexicanos, S.A., 831 F.2d 59, 62-63 (5th Cir. 1987); see
Medical Liability Mutual Ins. Co. v. Alan Curtis LLC, 485
F.3d 1006, 1008-09 (8th Cir. 2007).
The reason is practical, and also obvious: the effects of
a judgment in or a settlement of a lawsuit can ramify
throughout the economy, inflicting hurt difficult to
prove on countless strangers to the litigation. Remoteness
of injury is a standard ground for denying a person the
rights of a party to a lawsuit. It is one of the “prudential”
(as distinct from constitutional) limitations on standing
to sue, e.g., Blue Shield of Virginia v. McCready, 457 U.S.
465, 476-78 (1982); MainStreet Organization of Realtors v.
Calumet City, 505 F.3d 742, 744-47 (7th Cir. 2007), whereas
“a modest probability of injury is enough for standing” in
the Article III sense. Wiesmueller v. Kosobucki, No. 08-2527,
2009 WL 1956335, at *3 (7th Cir. July 9, 2009); see North-
eastern Florida Chapter of Associated General Contractors v.
City of Jacksonville, 508 U.S. 656, 664-66 (1993); Pennell v.
City of San Jose, 485 U.S. 1, 6-8 (1988).
Another dimension of the “interest” required for inter-
vention as a matter of right, also borrowed from (though
not necessarily identical to) the prudential as distinct
from the Article III concept of standing, is that the suitor
be someone whom the law on which his claim is
founded was intended to protect. New York Public
Interest Research Group, Inc. v. Regents of University, 516
F.2d 350, 352 (2d Cir. 1975) (per curiam); see Allen v.
Wright, 468 U.S. 737, 750-51 (1984). That’s not a problem
No. 09-1883 5
in this case. Wisconsin’s “Unfair Sales Act” is special-
interest legislation and the special interest is that
of retailers who wish, naturally enough, to limit price
competition. They are the statute’s direct beneficiaries, as
shown by the fact that the statute authorizes them to sue
to enforce it against price cutters if they can prove in-
jury. Invalidation of the statute would deprive them of the
benefit not only of that remedy but also of the principal
remedy provided by the statute—public enforcement by
a variety of means none requiring proof of injury. The
state may sue for civil penalties, Wis. Stat. § 100.30(4),
impose cease and desist orders the violation of which
incurs a civil penalty, § 100.30(5)(a), and sue to enjoin
violations without having to show that its remedy at law
is inadequate. § 100.30(5)(b). None of these remedies
is available to a private person.
The interest of the private persons intended to be bene-
fited by the Unfair Sales Act in the preservation of this
remedial scheme is therefore sufficient to warrant inter-
vention under Rule 24(a)(2), provided that the retailers
would be directly rather than remotely harmed by the
invalidation of the statute. They would be; they would
lose much or even all of their business to their larger,
more efficient competitors.
Nor do we think the association’s motion to intervene,
even though not filed until the district judge had entered
his final judgment, was untimely—assuming that all the
association wants is to take an appeal (a question we
discuss below, and answer in the affirmative). If it wants
to present evidence, then its motion was indeed untimely.
6 No. 09-1883
It was content for the state attorney general to defend
the statute until he decided not to appeal. Its champion,
the attorney general, having lost the case, it cannot be
allowed to subject the winning party to another trial.
United States v. American Tel. & Tel. Co., 642 F.2d 1285, 1294-
95 (D.C. Cir. 1980); Smuck v. Hobson, 408 F.2d 175, 181-82
(D.C. Cir. 1969) (en banc); see David L. Shapiro, “Some
Thoughts on Intervention Before Courts, Agencies, and
Arbitrators,” 81 Harv. L. Rev. 721, 752-56 (1968).
Had the association sought to intervene earlier, its
motion would doubtless (and properly) have been
denied on the ground that the state’s attorney general
was defending the statute and that adding another defen-
dant would simply complicate the litigation. For there
was nothing to indicate that the attorney general was
planning to throw the case—until he did so by failing
to appeal. At that point the objection to intervention,
as long as taking new evidence was not contemplated,
evaporated.
Another requirement for intervention as a matter of
right under Rule 24(a)(2)—that “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”—presents a greater obstacle to
the association’s intervening as a matter of right because
there is nothing to prevent a member who is injured
by pricing in violation of the Unfair Sales Act to sue the
violator. There would be no defense of res judicata,
because neither the association nor any of its members is
(as yet) a party to the present suit. It is true that concern
No. 09-1883 7
with the stare decisis effect of a decision can be a ground
for intervention, New York Public Interest Research Group,
Inc. v. Regents of University, supra, 516 F.2d at 352; Atlantis
Development Corp. v. United States, 379 F.2d 818, 826,
828 (5th Cir. 1967), because courts are reluctant to
overrule a precedent. But the decision of a district court
has no authority as precedent. Matheny v. United States,
469 F.3d 1093, 1097 (7th Cir. 2006). And unless interven-
tion is permitted, there is no way in which the district
court’s decision in this case could be appealed and thus,
if affirmed, give rise to a precedent that would impede
the association’s ability to overturn the invalidation of
the Unfair Sales Act in another suit.
Still, to make the association start over, when all it
really seeks by way of intervention (as we explain below)
is an opportunity to litigate an appeal, would impose
substantial inconvenience on the association with no
offsetting gain that we can see. That inconvenience is
an “impediment” that can be removed, without prejudice
to its opponent, by allowing intervention. See Natural
Resources Defense Council v. Costle, 561 F.2d 904, 910-11
(D.C. Cir. 1977).
Furthermore, even if the “impediment” were con-
sidered insufficient to justify intervention as a matter of
right, there is the association’s argument for permissive
intervention to consider. Neither the “impair or impede”
requirement nor the “interest” requirement is repeated
in the subpart of Rule 24 that governs permissive inter-
vention. All that is required by Rule 24(b)(1)(B), so far as
relates to this case, is that the applicant’s claim or defense
8 No. 09-1883
and the main action have a question of law or fact
in common. That requirement is satisfied because the
association wants to present the same defense that the
defendants presented. Like anyone who wants to
maintain an action in federal court, the association has
to have standing in the Article III sense—but it does.
The motion to intervene has to be timely, but at argu-
ment we extracted from the association a reluctant ac-
knowledgment that all it really wants is a ruling by us
(for there is no point in its seeking reconsideration by
the district court on the identical record) that the Unfair
Sales Act is not preempted. The association does not
want to present evidence—if it did, its Rule 24(b) claim
would be untimely for the same reason that, on the
same assumption, its Rule 24(a) claim would be.
With evidence not an issue, the only ground that the
district judge gave for denying intervention was that
intervention “would result in an appeal that is other-
wise not forthcoming.” That is not an adequate ground,
when the only reason there would be no appeal is that
the losing party had abandoned the case. To allow the
substitution of a party that has a legally protectable
interest in the statute enjoined by the district court is as
proper as permitting an unnamed class member in a
class action suit to intervene when the class representative
drops out. United Airlines, Inc. v. McDonald, 432 U.S.
385, 394-96 (1977); Rogers v. Paul, 382 U.S. 198, 199 (1965)
(per curiam); Roe v. Town of Highland, 909 F.2d 1097, 1099-
1100 (7th Cir. 1990); see Wiesmueller v. Kosobucki, 513 F.3d
784, 786 (7th Cir. 2008). There is no prejudice to Flying J,
No. 09-1883 9
because it could not have assumed that, if it won in
the district court, there would be no appeal. United
States v. American Tel. & Tel. Co., supra, 642 F.2d at 1294-95;
Meek v. Metropolitan Dade County, 985 F.2d 1471, 1478-
80 (11th Cir. 1993) (per curiam), overruled on other
grounds by Dillard v. Chilton County Commission, 495
F.3d 1324 (11th Cir. 2007). It’s not as if it had incurred
litigation costs in a reasonable expectation that they
would not be magnified by an appeal. It must have been
as surprised as the association was when the attor-
ney general decided not to appeal a decision holding a
Wisconsin statute unconstitutional. There was, in short,
no reliance by Flying J on the attorney general’s aban-
doning the case.
Although it might seem to follow from our analysis
that we should remand the case with directions that
the district court grant the motion to intervene and
extend the time for filing a notice of appeal from the
judgment on the merits for 30 days from the date of the
motion, there is no point in doing that, since the associa-
tion’s only valid goal in intervening was to litigate
the case on appeal. And so to save time we shall, like
the Eleventh Circuit in the Meek case, treat the inter-
venor as the appellant from the judgment on the merits
and direct briefing to proceed in the usual manner,
except that the appeal will be decided by this panel.
985 F.2d at 1480 n. 3; see also Edwards v. City of Houston, 37
F.3d 1097, 1108, 1116 (5th Cir. 1994). (Indeed, we cannot
understand why the parties did not brief the merits.)
The parties will want to pay particular attention to the
10 No. 09-1883
bearing on the district court’s decision of Exxon Corp. v.
Governor of Maryland, 437 U.S. 117 (1978).
V ACATED .
8-20-09