Schoenman v. Federal Bureau of Investigation , 263 F.R.D. 23 ( 2009 )

UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
RALPH SCHOENMAN,
Plaintiff,
v. Civil Action No. 04-2202 (CKK)
FEDERAL BUREAU OF INVESTIGATION,
et al.,
Defendants.
MEMORANDUM OPINION
(November 9, 2009)
This case comes before the Court upon the filing of a “Motion to Enforce Consent
Decree, Motion for Reconsideration En Banc, Motion to Intervene as Plaintiff under Rule
24(a)(2) and Rule 24(b)(2),” filed by Jonathan Lee Riches, a federal inmate incarcerated at the
Federal Medical Center in Lexington, Kentucky. Mr. Riches, representing himself pro se,
contends that he is entitled to intervene as a matter of right pursuant to Federal Rule of Civil
Procedure (“Rule”) 24(a) or, alternatively, that he meets the requirements for permissive
intervention pursuant to Rule 24(b). In addition, as the caption of the motion suggests, Mr.
Riches also moves for reconsideration en banc and to enforce a consent decree. Both Plaintiff
and Defendants oppose Mr. Riches’ motion and have filed a joint opposition to that effect.
Based upon a searching review of Mr. Riches’ [120] Motion, Plaintiff’s and Defendants’
[121] Joint Opposition and the attachments thereto, the relevant legal authority, and the record of
this case as a whole, the Court shall DENY Mr. Riches’ [120] Motion to Enforce Consent
Decree, Motion for Reconsideration En Banc, Motion to Intervene as Plaintiff under Rule
24(a)(2) and Rule 24(b)(2), for the reasons that follow.
I. BACKGROUND
The Court assumes familiarity with, and shall not repeat herein, the factual background of
this case, which has been extensively discussed by this Court in its previous decisions regarding
the parties’ various cross-motions for summary judgment. See, e.g., Schoenman v. FBI, 604 F.
Supp. 2d 174 (D.D.C. 2009); Schoenman v. FBI, 573 F. Supp. 2d 119 (D.D.C. 2009); Schoenman
v. FBI, 604 F. Supp. 2d 174 (D.D.C. 2008); Schoenman v. FBI, 575 F. Supp. 2d 136 (D.D.C.
2008). For the purposes of the instant Memorandum Opinion, it is sufficient to note that the
above-captioned civil action was filed nearly five years ago by Plaintiff, Ralph Schoenman, a
political activist and author, pursuant to the Freedom of Information Act (“FOIA”), 5 U.S.C. §
552, and the Privacy Act of 1974 (“Privacy Act” or “PA”), 5 U.S.C. § 552a. Plaintiff seeks
access to an array of records pertaining to himself, Lord Bertrand Russell, and six organizations,
from a total of ten different named agencies — including, as is relevant to the instant
Memorandum Opinion, the Federal Bureau of Investigation (“FBI”) — and a number of
unnamed agencies to which the named agencies might refer documents for a determination as to
releasability.1
Now pending before the Court is Mr. Riches’ [120] Motion to Enforce Consent Decree,
Motion for Reconsideration En Banc, Motion to Intervene as Plaintiff under Rule 24(a)(2) and
Rule 24(b)(2), (hereinafter, “Motion to Intervene”). According to Mr. Riches, he is a “former
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Specifically, Plaintiff’s Complaint also named as Defendants: the Central Intelligence
Agency, the Defense Intelligence Agency, the Department of the Air Force, the Department of
Justice, the Department of the Army, the Department of the Navy, the Department of State, the
National Archives and Records Administration, the National Security Agency, and John Doe
Agencies 1-10. Compl. at 1 & ¶ 13.
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CIA agent with the FBI in their cyber computer security division where [he] was undercover
globally to stop computer hackers and identify thieves.” See Mot. to Intervene, Docket No.
[120].2 He also claims to have worked with the Plaintiff “in Silicon Valley . . . from 1999 to
2001 building defense firewalls and email traps and preventing Trojan horses from infiltrating
computer terminals for the Government,” id., although Plaintiff himself has submitted a
statement denying any knowledge of or contact with Mr. Riches, see Pl. & Defs.’ Jt. Opp’n,
Docket No. [121]. As set forth in his motion, Mr. Riches claims that he has evidence
demonstrating that the FBI has improperly withheld certain documents in this case and therefore
seeks to intervene in this civil action, either as a matter of right pursuant to Rule 24(a)(2) or,
alternatively, by permission pursuant to Rule 24(b). Id. Mr. Riches also purports to move for
“reconsideration en banc” and to enforce “this Court’s consent decree,” although he neither
specifies the particular order he seeks to challenge nor identifies the alleged “consent decree” he
seeks to enforce. See id.
Plaintiff and Defendants have filed a Joint Opposition to Mr. Riches’ Motion to
Intervene. See Pl. & Defs.’ Jt. Opp’n, Docket No. [121]. Mr. Riches declined to file any reply.
Accordingly, the third-party Motion to Intervene is now ripe for the Court’s resolution and
review.
II. LEGAL STANDARDS
As explained above, Mr. Riches has moved for intervention pursuant to Rule 24, which
allows intervention under two standards: intervention of right and permissive intervention. FED .
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As indicated by Plaintiff and Defendants in their joint opposition, it appears that Mr.
Riches regularly attempts to intervene in federal cases across the country. See Pl. & Defs.’ Jt.
Opp’n, Docket No. [121], at 1, n.1.
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R. CIV . P. 24(a)-(b). First, the Rule permits intervention of right when, inter alia, the applicant
“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). As explained by the D.C. Circuit, to qualify for an intervention of right under
Rule 24(a)(2), the following four factors must be met:
(1) the timeliness of the motion; (2) whether the applicant “claims an interest relating
to the property or transaction which is the subject of the action”; (3) whether “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”; and (4) whether “the
applicant’s interest is adequately represented by existing parties.”
Fund for Animals, Inc. v. Norton, 322 F.3d 728, 731 (D.C. Cir. 2003) (quoting Mova Pharm.
Corp. v. Shalala, 140 F.3d 1060, 1074 (D.C. Cir. 1998)) ; see also U.S. v. Phillip Morris USA,
Inc., 566 F.3d 1095, 1146 (D.C. Cir. 2009). “Rule 24(a) ‘impliedly refers not to any interest the
applicant can put forward, but only to a legally protectable one.” Mova Pharm. Corp., 140 F.3d
at 1074 (quoting S. Christian Leadership Conference v. Kelly, 747 F.2d 777, 779 (D.C. Cir.
1984)). Accordingly, in this Circuit, “a party seeking to intervene as of right must demonstrate
that it has standing under Article III of the Constitution.” Fund for Animals, 322 F.3d at 731-32.
Second, the Rule provides that a Court may grant an applicant permission to intervene
who either: “(A) is given a conditional right to intervene by a federal statute; or (B) has a claim
or defense that shares with the main action a common question of law or fact.” FED . R. CIV . P.
24(b)(1). In considering a motion for permissive intervention, a court must also “consider
whether the intervention will unduly delay or prejudice the adjudication of the original parties’
rights.” FED . R. CIV . P. 24(b)(3). “[P]ermissive intervention is an inherently discretionary
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enterprise,” E.E.O.C. v. Nat’l Children’s Ctr., Inc., 146 F.3d 10423, 1046 (D.C. Cir. 1998), and
“the court enjoys considerable discretion under Rule 24(b),” Envtl. Def. v. Leavitt, 329 F. Supp.
2d 55, 66 (D.D.C. 2004).
III. DISCUSSION
The Court concludes that Mr. Riches is not entitled to intervene under either Rule
24(a)(2) or Rule 24(b). First, Mr. Riches has not demonstrated that he is entitled to intervene as
a matter of right under Rule 24(a)(2). His motion comes nearly five years after the above-
captioned suit was filed. He has not set forth any specific interest with respect to the instant
FOIA action nor has he explained how disposition of the instant action may impede his ability to
protect any specific interest of his own. Rather, Mr. Riches seeks to intervene only to provide
evidence that he claims would demonstrate that the FBI has improperly withheld certain
documents from Plaintiff. See Mot. to Intervene. He does not explain what this evidence is or
how it was obtained. Moreover, it is readily apparent that Mr. Riches’ alleged interest in
ensuring that the FBI fully discloses all documents responsive to Plaintiff’s FOIA request is an
interest already adequately represented by Plaintiff himself. Finally, Mr. Riches has made no
effort to demonstrate that he has standing under Article III, as is required under D.C. Circuit
precedent. Accordingly, the Court shall DENY Mr. Riches’ motion to the extent he seeks to
intervene as a matter of right in this litigation.
Second, the Court finds that Mr. Riches has also failed to demonstrate that he has met the
threshold requirements necessary for permissive intervention under Rule 24(b). He has not cited
to any relevant federal statute that provides him a conditional right to intervene in this case nor
has he indicated that he has a claim or defense that involves a common question of law or fact.
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Moreover, in light of the parties’ joint opposition to Mr. Riches’ motion and the untimely nature
of his request to intervene, the Court finds that permitting intervention at this late stage would
likely lead to undue delay and prejudice the original parties’ rights. Accordingly, in exercising
its “considerable discretion under Rule 24(b),” the Court shall DENY Mr. Riches’ motion to the
extent he seeks permissive intervention.
Finally, in light of the Court’s decision above denying Mr. Riches’ request to intervene,
the Court shall also DENY Mr. Riches’ motion to the extent he purports to move for
reconsideration en banc and to enforce a consent decree. As noted above, Mr. Riches makes no
efforts to specify the particular order he intends to challenge nor does he identify the alleged
“consent decree” he seeks to enforce. See id. Regardless, his requests for reconsideration and
enforcement must be denied in light of the Court’s finding above that he is not entitled to
intervene. Accordingly, Mr. Riches’ [120] Motion to Enforce Consent Decree, Motion for
Reconsideration En Banc, Motion to Intervene as Plaintiff under Rule 24(a)(2) and Rule 24(b)(2)
is DENIED in its entirety.
IV. CONCLUSION
For the reasons set forth above, the Court shall DENY Mr. Riches’ [120] Motion to
Enforce Consent Decree, Motion for Reconsideration En Banc, Motion to Intervene as Plaintiff
under Rule 24(a)(2) and Rule 24(b)(2). An appropriate Order accompanies this Memorandum
Opinion.
Date: November 9, 2009
/s/
COLLEEN KOLLAR-KOTELLY
United States District Judge
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