Judge Cox Denies as Untimely AFSCME Council 25 Motion to Intervene in EPA Lawsuit

Less than a week after AFSCME Council 25 filed its Motion to Intervene in the EPA Lawsuit in order to block implementation of the U.S. District Court's November 4, 2011 Order, Judge Sean Cox earlier today issued an Opinion and Order DENYING the motion on grounds that the motion was untimely. 

Timeliness of a motion to intervene is a threshold issue for any court to consider. In this case, Judge Cox found that "this Court's analysis begins, and ends, with timeliness." 

Judge Cox considered four (4) elements related to timeliness:

1. How long did AFSCME know of their interest in the case?

The first factor, the length of time preceding the application for intervention during which the proposed intervenor knew or reasonably should have known of his interest in the case, is the most significant factor here and weighs heavily against intervention.

The DWSD has been under federal court oversight since 1977. This case has garnered considerable media attention over the past four decades.  . . . [T]he risk that orders in this action may affect collective bargaining agreements and union work rules, as they relate to DWSD, has been apparent for decades. [Court then cites reports from 1977-2009]
                                            * * *
In addition, there is no question that AFSCME had actual knowledge, no later than September 9, 2011 [when the Court issued its Opinion and Order Denying Detroit's Motion to Dismiss the EPA Lawsuit], that its interests would likely be impacted by orders that would be issued in this case on an expedited basis.
                                            * * * 
Nevertheless, neither AFSCME nor any of the other 19 unions that represent employees of the DWSD sought to intervene after this Court issued its September 9, 2011 Opinion & Order. Rather, union representatives met with members of the Root Cause Committee to voice their views and adopted a "wait-and-see" approach . . .

2.  What is the purpose for intervening in the lawsuit?

Under Rule 24 of the Federal Rules of Civil Procedure (Fed. R. Civ. P. 24), a motion to intervene must be accompanied by a pleading that sets out the claim or defense for which intervention is requested. 

In this case, AFSCME Council 25 did not attach a proposed complaint or other pleading.

3. Will there be prejudice to the original parties to the lawsuit? 

Judge Cox concludes in his Opinion and Order that the answer to this question is a resounding -- Yes.

The EPA initiated this action [in 1977] to address violations of the Clean Water Act, the objective of which is to restore and maintain the chemical, physical, and biological integrity of the Nation's waters. It is undisputed that, over the course of the past four decades, the DWSD has had serious and recurring NPDES permit violations, which constitute violations of the Clean Water Act. 

                                            * * *

This Court has already concluded that certain collective bargaining provisions and work rules are impeding the DWSD from achieving compliance with its NPDES permit and the Clean Water Act and issued an order enjoining those provisions. If the Court's Order is not implemented immediately, the DWSD's ability to function and reach compliance with its NPDES permit, the ACO, and the Clean Water Act will be jeopardized. That would prejudice the City of Detroit, the DWSD and its customers, the general public, and the DEQ -- the entity current charged with enforcing the DWSD's NPDES permit, which has spent considerable resources monitoring DWSD over many years. 

4. How far has the case already progressed?

Judge Cox also answers this question in the affirmative citing the long duration of this case and numerous reports citing issues with the collective bargaining agreements, work rules and job descriptions.

2011-11-18.Opinion and Order Denying AFSCME Council 25 Motion to Intervene

For more about DWSD Update, click here. 

Update (11/29): AFSCME Council 25 filed a Notice of Appeal to the Sixth Circuit Court of Appeals today. See, USA v City of Detroit, Case No. 11-2517.