Legal Question in Appeals and Writs in Florida

I'm trying t join a case at the US Supreme Court -- and have a question about Rule 12.4 (US Sup Ct), which states in part: "A party not shown on the petition as joined therein at the time the petition is filed may not later join in that petition." (Rule 12.4, "Review on Certiorari: How Sought; Parties") http://www.supremecourt.gov/ctrules/2013RulesoftheCourt.pdf

This seems to contradict current (and undisturbed) case law, holding that Joinder under F.R.Civ.P. 21 is even broader than Permissive Intervention under R.24(b): Rule 21 provides a court may join parties to an action “[o]n motion [of any party] or on its own…at any time [and] on just terms.” Fed.R.Civ.P. 21; Newman-Green, Inc. v. Alfonzo-Larrain, 490 U.S. 826, 832 (1989) (noting the policies behind R.21 apply to appellate courts).

Indeed, The U.S. Supreme Court frequently exercises its authority to add (join) similarly-situated parties to avoid potential mootness or other jurisdictional problems where doing so entails no prejudice to parties, and requiring the movant “to start over in the District Court would entail needless waste and run[] counter to effective judicial administration.” Mullaney v. Anderson, 342 U.S. 415, 417 (1952).

This Supreme Court has not receded from or overturned this case law, so far as I can see, so what gives? -- I see one of 3 possibilities:

(1) The rule 'updated' the case law, and overturned it. (Bad for me!)

(2) The rule won't allow *me* to join an *existing* petition, but it *will* allow me to file one of my own, and join the other party to *mine* under this case law.

(3) The court is confused, and has a 'gray area of case law' that should be resolved by the justices.

The reason I ask is that I think that the clerk will not even file my joinder motion. (And with regards to my intervention motion, he says that the case law allowing me to intervene at any time is from an appellate court, persuasive, but not binding upon the supreme court.)

Which of those 3 descriptions seems the most correct interpretation of the rule? And, what should I tell the clerk when I e-file? Thx! (Not seeking legal advice, only interpretation and translation of their Byzantine rule!)

Byzantine, adjective - definition

"(sometimes lowercase) complex or intricate:

a deal requiring Byzantine financing'."

http://www.dictionary.com/browse/byzantine


Asked on 3/21/16, 7:55 am

1 Answer from Attorneys

Edward Hoffman Law Offices of Edward A. Hoffman

The Federal Rules of Civil Procedure don't apply in the Supreme Court. They govern only in the District Courts. The Supreme Court's rules aren't supposed to work the same way, since the two courts work very differently. One difference is that the reasons why joinder is often proper in the District Court simply don't apply in the Supreme Court.

You invoke Rule 12, paragraph 4. Its opening passage says "Parties interested jointly, severally, or otherwise in a judgment may petition separately for a writ of certiorari; or any two or more may join in a petition." Unless you have a direct interest in the underlying judgment, you ordinarily can't challenge it in the Supreme Court.

As you note, the same paragraph also says "A party not shown on the petition as joined therein at the time the petition is filed may not later join in that petition." This language expressly forbids what you want to do. That the District Courts have a different rule is irrelevant.

You say the Court "frequently" allows joinder. Not so. The case you cite, Mullaney v. Anderson, is the only one I can think of offhand in which it was allowed. (There may have been others, including some in which cert was denied after the Court granted a request for joinder.) The circumstances of that case were very unusual. The Alaska Fishermen's Union and one of its officers were parties to the case, and the other side argued that the union and officer weren't authorized to bring the case on behalf of the union's members. The union then asked the Court to join two of its members as parties. (Note that the request was made by the existing parties and not by the members who wanted to join.) As the Court explained, "To grant the motion merely puts the principal, the real party in interest, in the position of his avowed agent." It granted the motion only "in view of the special circumstances before us."

Do you believe your circumstances are comparable? In other words, is your situation so out of the ordinary that the Court should allow something it normally forbids? You haven't told us anything about your case or how it relates to the case you want to join, so I can't tell whether it does or not. Nothing you have said suggests that it does.

Feel free to contact me directly if you'd like to discuss your situation in more detail. I have over 20 years of appellate experience, and am certified as an appellate specialist by the State Bar of California's Board of Legal Specialization.

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Answered on 3/21/16, 1:10 pm


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