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United States v. City of New York, Southern District of New York (Dec. 18, 2014)

raw: Memorandum Of Law In Support Of The United States' Motion To Intervene

Memorandum Of Law In Support Of The United States' Motion To Intervene (S.D.N.Y. Dec. 18, 2014)

Caption: United States v. City of New York

Exhibit of Department Of Justice Takes Legal Action To Address Pattern And Practice Of Excessive Force And Violence At Rikers Island Jails That Violates The Constitutional Rights Of Young Male Inmates

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Scheme: non-corporate (100%)
Court: Southern District of New York

Classified non-corporate(confidence 100%). No EDGAR filing fingerprint (criminal/DOJ-side scheme). detection rule →

Extracted insights

Entities 5

person Emily E. Daughtry
person Jeffrey K. Powell
person Preet Bharara
person protectable interest
location United States

Triples 5

United States filed Motion To Intervene
Preet Bharara is United States Attorney For Southern District Of New York
Jeffrey K. Powell is Assistant United States Attorney
Emily E. Daughtry is Assistant United States Attorney
United States has Protectable Interest

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Memorandum Of Law In Support Of The United States' Motion To Intervene · Source

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UNITED STATES DISTRICT COURT
SOUTHERN DISTRICT OF NEW YORK

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MARK NUNEZ, et al.,

Plaintiffs,

- against -

CITY OF NEW YORK, et al.,

Defendants.

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11 Civ. 5845 (LTS)(JCF)

MEMORANDUM OF LAW IN SUPPORT OF THE
UNITED STATES OF AMERICA’S MOTION TO INTERVENE

PREET BHARARA
United States Attorney for the
Southern District of New York
86 Chambers Street, 5th Floor
New York, New York 10007
Tel.: (212) 637-2777

JEFFREY K. POWELL
EMILY E. DAUGHTRY
Assistant United States Attorneys

— Of Counsel —

TABLE OF CONTENTS

Page:

PRELIMINARY STATEMENT .......................................................................................................1

I. APPLICABLE LEGAL STANDARDS ................................................................................4

A. Civil Rights of Institutionalized Persons Act (“CRIPA”) ................................................4

B. Intervention Pursuant to Federal Rule of Civil Procedure 24 ..........................................5

II. DISCUSSION ........................................................................................................................5

A. The United States’ Motion Is Timely ..............................................................................6

B. CRIPA Gives the United States an Unconditional Right to Intervene Pursuant to Rule
24(a)(1) ............................................................................................................................8

C. The United States Is Also Entitled to Intervention of Right

Pursuant to Rule 24(a)(2) ...........................................................................................11

1. The United States Has a Protectable Interest .......................................................11

2. This Case May Impair the United States’ Ability to Protect Its Interest .............12

3. The Existing Parties May Not Adequately Represent the United States’
Interest..................................................................................................................14

D. The United States is Entitled to Permissive Intervention ................................................16

CONCLUSION ............................................................................................................................17

TABLE OF AUTHORITIES

CASES Page:

Bridgeport Guardians, Inc. v. Delmonte,

602 F.3d 469 (2d Cir. 2010).........................................................................................11

Bhd. of RR Trainmen v. Baltimore & O.R. Co. et al.,

331 U.S. 519 (1947) .............................................................................................8, 9, 10

Brennan v. N.Y.C. Bd. Of Educ.,

260 F.3d 123 (2d Cir. 2001) ........................................................................................11

Butler, Fitzgerald & Potter v. Sequa Corp.,

250 F.3d 171 (2d Cir. 2001).........................................................................................14

Catanzano v. Wing,

103 F.3d 223 (2d Cir. 1996).........................................................................................11

Feller v. Brock,

802 F.2d 722 (4th Cir. 1986) .......................................................................................15

Floyd v. City of New York,

770 F.3d 1051 (2d Cir. 2014)............................................................................... passim

Forest Conservation Council v. U.S. Forest Service,

66 F.3d 1489 (9th Cir. 1995) .......................................................................................15

H.L. Hayden Co. of NY v. Siemens Medical System Inc.,

797 F.2d 85 (2d Cir. 1986)...........................................................................................16

JLS, Inc. v. Pub. Serv. Comms’n of West Virginia,

321 Fed. Appx. 286, 291 (4th Cir. 2009) ...................................................................15

iii

Kleissler v. U.S. Forest Serv.,

157 F.3d 964 (3d Cir. 1998).........................................................................................14

MasterCard International Inc. v. Visa International Serv. Association, Inc.,

471 F.3d 377 (2d Cir. 2006)...........................................................................................7

Natural Resources Defense Council v. Costle,

561 F.2d 904 (D.C. Cir. 1977) .....................................................................................15

Ruiz v. Estelle,

161 F.3d 814 (5th Cir. 1998) ...................................................................................8, 10

Sierra Club v. Espy,

18 F.3d 1202 (5th Cir. 1994) .......................................................................................15

Smith v. Pangilinan,

651 F.2d 1320 (9th Cir. 1981) .....................................................................................13

Trbovich v. United Mine Workers of America,

404 U.S. 528 (1972) .....................................................................................................14

United States v. City of New York,

198 F.3d 360 (2d Cir. 1999)...............................................................................6, 11, 12

United States v. Hooker Chemicals & Plastics Corp.,

749 F.2d 968 (2d Cir. 1984)...................................................................................11, 16

United States v. Pitney Bowes, Inc.,

25 F.3d 66 (2d Cir. 1994) ..............................................................................................6

United States v. Yonkers Bd. of Educ.,

801 F.3d 583 (2d Cir. 1986).....................................................................................6

STATUTES

42 U.S.C. § 1997 ..................................................................................................................1

42 U.S.C. § 1997a ........................................................................................................11, 12

42 U.S.C. § 1997c ...................................................................................................... passim

42 U.S.C. § 14141 ..........................................................................................................1, 16

Fed. R. Civ. P. 24 ....................................................................................................... passim

The United States of America, by and through its attorney Preet Bharara, respectfully

submits this memorandum of law in support of its motion to intervene in the above-captioned

case. Plaintiffs and the City of New York both consent to the United States’ intervention.

PRELIMINARY STATEMENT

Following a two-and-a-half year investigation by the U.S. Attorney’s Office for the

Southern District of New York (the “United States”), which found a pervasive and deep-seated

culture of violence at the New York City Department of Correction (“DOC”) jails on Rikers

Island (“Rikers”), the United States is moving to intervene in this action pursuant to the Civil

Rights of Institutionalized Persons Act (“CRIPA”), 42 U.S.C. § 1997. CRIPA allows the United

States to intervene in any action seeking relief from conditions of confinement that deprive

prisoners “of any rights, privileges, or immunities secured or protected by the Constitution or

laws of the United States causing them to suffer grievous harm,” where the Attorney General has

“reasonable cause to believe” that such deprivation is pursuant to a pattern or practice of

resistance to the full enjoyment of such rights. 42 U.S.C. § 1997c(a)(1). The United States has

such reasonable cause to believe that the youngest inmates at Rikers – 16-, 17-, and 18-year old

inmates – are not adequately protected from harm due to the rampant use of unnecessary and

excessive force against them by DOC staff and the violence inflicted on them by other inmates.

Furthermore, the United States has reasonable cause to believe that this violence is the result of

widespread and longstanding systemic deficiencies within DOC and its jail complex on Rikers.

On January 12, 2012, the United States formally notified the City of New York that the

United States was opening an investigation into the treatment of male inmates between the ages

of sixteen and eighteen (the “Subject Inmates”) at DOC jails on Rikers pursuant to CRIPA and

Section 14141 of the Violent Crime Control and Law Enforcement Act of 1994, 42 U.S.C. §

14141 (“Section 14141”). Both CRIPA and Section 14141 give the Department of Justice

authority to seek a remedy for a pattern or practice of conduct that violates the constitutional

rights of inmates in detention and correctional facilities.

On August 4, 2014, the United States issued a public findings letter concluding that

there is a pattern and practice of conduct at Rikers that violates the constitutional rights of the

Subject Inmates. In particular, the letter noted that DOC has systematically failed to adequately

protect the Subject Inmates from harm, including harm from excessive use of force by staff and

inmate-on-inmate violence. The United States determined that force is used by staff at an

alarming rate, and that violent inmate assaults are commonplace, leading to a high number of

serious injuries. The United States found that correction officers frequently resort to “headshots”

or blows to an inmate’s head or facial area, and that force is used against 16-, 17-, and 18-year

old inmates as punishment or retribution or in response to verbal altercations with officers. The

United States observed that the force employed by specialized response teams is particularly

brutal, and that force is common in areas without video surveillance cameras.

Furthermore, the United States pointed out the many systemic deficiencies that have

ultimately resulted in these problems, including but not limited to inadequate reporting of use of

force by staff, inadequate investigations into use of force, inadequate staff discipline for

inappropriate use of force, inadequate supervision of inmates by staff, inadequate training on use

of force, and a historical failure by management stretching back years, if not decades, to

adequately address the extraordinary levels of violence perpetrated against the inmate

population. The United States also noted that DOC’s use of prolonged punitive segregation for

the Subject Inmates is excessive and inappropriate. Finally, the United States proposed over 70

specific remedial measures that it found DOC should implement to address the deficiencies

identified. See United States’ Letter to Mayor Bill de Blasio, Commissioner Joseph Ponte, and

Corporation Counsel Zachary Carter, dated August 4, 2014 (“Findings Letter”), attached as

Exhibit A to the United States’ Proposed Complaint-in-Intervention. The findings set forth in

the United States’ letter of August 2014 are substantially similar to the allegations set forth in the

Amended Complaint, filed by plaintiffs on May 24, 2012, on behalf of all inmates at DOC jails

(other than the Eric M. Taylor Center and the Elmhurst and Bellevue Prison Wards), that DOC

staff regularly use unnecessary and excessive force against inmates in violation of their

constitutional rights. See Amended Complaint [Dkt. No. 15].

The United States’ proposed complaint-in-intervention (“Proposed Complaint”) largely

mirrors the conclusions in its Findings Letter. Given the overlap between the United States’

CRIPA investigation and the subject matter of this litigation, including allegations of

fundamental and systemic deficiencies related to use of force policies and practices, it would be

most efficient to resolve plaintiffs’ claims and the United States’ CRIPA investigation with a

single, comprehensive remedy. Indeed, the parties and the United States have already begun to

engage in joint negotiations, and both plaintiffs and the City of New York consent to the United

States’ intervention. Intervention by the United States in this matter will serve the interests of

judicial economy and will facilitate much needed reforms at Rikers in the fastest and most

efficient manner.

Accordingly, the United States moves this Court for intervention of right, pursuant to

Rule 24(a)(1) and 24(a)(2) of the Federal Rules of Civil Procedure, and alternatively for

permissive intervention, pursuant to Rule 24(b).

I. APPLICABLE LEGAL STANDARDS

A. Civil Rights of Institutionalized Persons Act (“CRIPA”)

CRIPA gives the Attorney General, on behalf of the United States, the discretion to

intervene in any action that:

has been commenced in any court of the United States seeking relief
from egregious or flagrant conditions which deprive persons residing
in institutions of any rights, privileges, or immunities secured or
protected by the Constitution or laws of the United States causing
them to suffer grievous harm [where] . . . the Attorney General has
reasonable cause to believe that such deprivation is pursuant to a
pattern or practice of resistance to the full enjoyment of such rights,
privileges, or immunities.

42 U.S.C. § 1997c(a). In such actions, the United States “may intervene . . . upon motion by the

Attorney General.” Id.

CRIPA further provides that, unless the interests of justice require it, the Attorney

General must wait to intervene until 90 days have passed from the commencement of the action

in which he is intervening, and that his motion must include a certification, personally signed by

the Attorney General, (1) that he has provided the head of the relevant political subdivision with

at least 15 days written notice of: (a) “the alleged conditions which deprive [institutionalized

persons] of rights, privileges, or immunities secured or protected by the Constitution or laws of

the United States and the alleged pattern or practice of resistance to the full enjoyment of such

rights, privileges, or immunities;” (b) “the supporting facts giving rise to the alleged conditions,

including the dates and time period during which the alleged conditions and pattern or practice of

resistance occurred;” and (c) “the minimum measures which the Attorney General believes may

remedy the alleged conditions,” 42 U.S.C. § 1997c(b)(1)(A); and (2) “that the Attorney General

believes that intervention by the United States is of general public importance and will materially

further the vindication of rights, privileges, or immunities secured or protected by the

Constitution or laws of the United States,” 42 U.S.C. § 1997c(b)(1)(B). Finally, the Attorney

General must personally sign any motion to intervene pursuant to this section of CRIPA.

42 U.S.C. § 1997c(c).

B. Intervention Pursuant to Federal Rule of Civil Procedure 24

Rule 24 of the Federal Rules of Civil Procedure provides for two types of intervention –

intervention of right and permissive intervention. Rule 24(a) states that:

On timely motion, the court must permit anyone to intervene who
(1) is given an unconditional right to intervene by federal statute; or
(2) 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)(1)-(2).

Rule 24(b)(1) provides for permissive intervention. Under that provision:

On timely motion, the court may permit anyone to intervene who:
(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). The rule further instructs that “[i]n exercising its discretion, the court

must consider whether the intervention will unduly delay or prejudice the adjudication of the

original parties’ rights.” Fed. R. Civ. P. 24(b)(3).

II. DISCUSSION

The Court should grant the United States’ motion to intervene. The United States

satisfies the requirements both to intervene as of right and for permissive intervention. First, this

Court must permit the United States to intervene as of right because its motion is timely, and

CRIPA is a federal statute that gives the United States an unconditional right to intervene

pursuant to Rule 24(a)(1). 42 U.S.C. § 1997c(a). The United States also may intervene as of

right pursuant to Rule 24(a)(2), as it has a significant, legally protectable interest in the

proceedings; that interest may be impaired by the disposition of the case; and the existing parties

may not adequately protect the United States’ interest in ensuring that DOC does not violate the

constitutional rights of the Subject Inmates and complies with federal law. Fed. R. Civ. P.

24(a)(2); see also United States v. City of New York, 198 F.3d 360, 364 (2d Cir. 1999)

(describing “well-established” standards under this sub-section of Rule 24).

In the alternative, this Court should grant the United States’ permissive intervention

under Federal Rule of Civil Procedure 24(b). The United States’ CRIPA and Section 14141

claims share common questions of law and fact with the current action, and its intervention will

not unduly delay or prejudice the adjudication of the case.

The Second Circuit has explained that “intervention is a procedural device that attempts

to accommodate two competing policies: efficiently administrating legal disputes by resolving

all related issues in one lawsuit, on the one hand, and keeping a single lawsuit from becoming

unnecessarily complex, unwieldy or prolonged, on the other hand.” Floyd v. City of New York,

770 F.3d 1051, 1057 (2d Cir. 2014) (quoting United States v. Pitney Bowes, Inc., 25 F.3d 66, 69

(2d Cir. 1994))(internal quotation marks omitted). The United States’ intervention in this matter

successfully accommodates both policies.

A. The United States’ Motion Is Timely

Rule 24 requires that any motion for intervention—whether of right or permissive—be

timely. This requirement “is flexible” and any decision as to timeliness “is one entrusted to the

district judge’s sound discretion.” Floyd, 770 F.3d at 1058 (quoting U.S. v. Yonkers Bd. of

Educ., 801 F.2d 583, 594-95 (2d Cir. 1986)). Nonetheless, the Second Circuit has provided

guidance with respect to the factors to be considered, including: “(a) the length of time the

applicant knew or should have known of its interest before making the motion; (b) the prejudice

to existing parties resulting from the applicant’s delay; (c) prejudice to the applicant if the

motion is denied; and (d) the presence of unusual circumstances militating for or against a

finding of timeliness.” Floyd, 770 3d. at 1058 (quoting MasterCard Int’l Inc. v. Visa Int’l Serv.

Ass’n, Inc., 471 F.3d 377, 390 (2d Cir. 2006)).

The United States’ application for intervention is timely. Although the United States had

knowledge of plaintiffs’ case from the time it was filed, the extent of the overlap between this

case and the United States’ CRIPA investigation only became clear upon the completion of the

United States’ investigation. Intervention only became possible fifteen days after the issuance of

the United States’ findings letter in August 2014, just four months ago. See 42 U.S.C.

§ 1997c(b)(1)(A).

Since that time, the United States and the City of New York have been engaged in

discussions regarding resolution of the CRIPA investigation. While the United States had hoped

to reach a speedy resolution with the City on these critical issues, thus far insufficient progress

has been made. At this point, the United States, the City, and the plaintiffs to this action are at

approximately the same stage of negotiations regarding settlement of this action, and indeed have

engaged in joint settlement negotiations for the past several weeks. Because the parties have not

yet reached a settlement agreement, there is no prejudice to the parties that would result from the

United States’ intervention at this time. Cf. Floyd, 770 F.3d at 1059-60 (affirming district

court’s determination that police union’s motion to intervene was untimely after parties had

already reached settlement agreement). Furthermore, there is no prejudice to the parties because

the allegations in the Amended Complaint and the United States’ Proposed Complaint largely

overlap. Should the parties return to a more active litigation posture, the discovery sought by the

United States would be substantially similar to the discovery that already has been sought and

likely would be sought by the plaintiffs. Additionally, as noted, plaintiffs and the City of New

York consent to the United States’ intervention.

The categories of reforms currently being negotiated by the parties also overlap

substantially with remedies that the United States is seeking to resolve its CRIPA investigation.

In the absence of intervention by the United States giving it official status in this litigation, the

parties could reach agreement on these overlapping issues without the formal consent of the

United States. This would substantially prejudice the United States’ interest in protecting the

constitutional rights of the Subject Inmates.

Finally, the United States has made it clear to the City that any resolution of its CRIPA

investigation must be in the form of a court-enforceable consent decree, and this can only be

accomplished by the United States either filing its own action or intervening in this action. If the

United States were to file a separate suit, the City then would have to defend against two separate

cases with significantly overlapping allegations, as well as overlapping discovery if the parties

are unable to reach settlement. In the interests of “resolving all related issues in one lawsuit,” it

would be most efficient for the United States to intervene in this action. Id. at 1057. Given that

the stay of discovery in this case is scheduled to expire on December 22, 2014, the parties are on

the cusp of a critical moment in this case: they will have to make a determination as to whether

to request an additional stay of discovery to continue their settlement discussions or return to

litigation. Accordingly, this is a particularly opportune time for the United States to intervene.

B. CRIPA Gives the United States An Unconditional Right To Intervene Pursuant
to Rule 24(a)(1)

Assuming a timely motion, intervention under Rule 24(a)(1) is “absolute” and

“unconditional.” Bhd. of RR Trainmen v. Baltimore & O.R. Co., 331 U.S. 519, 531 (1947).

“Indeed, once it is clear that the statute applies, there is no room for the operation of a court’s

discretion.” Ruiz v. Estelle, 161 F.3d 814, 828 (5th Cir. 1998) (quoting Bhd. of RR Trainmen,

331 U.S. at 531) (internal quotation marks and brackets omitted). Here, it is clear that CRIPA

applies and that, “once the requirements of [CRIPA] have been met,” as they have been here, the

Attorney General “acquires an absolute right of intervention.” Bhd. of RR Trainmen, 331 U.S. at

531.

There can be no question that the intervention provision of CRIPA applies here.

Plaintiffs in this action seek relief “from egregious or flagrant conditions” whereby inmates at

Rikers jails are subject to unnecessary and brutally excessive use of force, which they allege

deprive them of “rights, privileges, or immunities secured or protected by the Constitution” and

thereby “caus[e] them to suffer grievous harm.” 42 U.S.C. § 1997c(a)(1). Furthermore, based

on the two-and-a-half year investigation by the United States into the treatment of a subset of

those inmates—the Subject Inmates—at the very same Rikers jails, the Attorney General has

“reasonable cause to believe” that the systematic failure to protect this population from excessive

and unnecessary force and from violence inflicted by other inmates is “pursuant to a pattern or

practice of resistance to the full enjoyment of such rights, privileges, or immunities.” Id.

Additionally, all the procedural requirements of the statute have been met. This action

was initiated more than ninety days ago. 42 U.S.C. § 1997c(a)(2). The Attorney General has

personally certified to this Court that at least fifteen days prior to the filing of this motion to

intervene, notice was provided to the Honorable Bill de Blasio, Commissioner of Correction

Joseph Ponte, and Corporation Counsel Zachary Carter, in the form of 79-page findings letter, of

“(i) the alleged conditions which deprive [inmates of their] rights, privileges, or immunities

secured or protected by the Constitution or laws of the United States and the alleged pattern or

practice of resistance to the full enjoyment of such rights, privileges, or immunities; (ii) the

supporting facts giving rise to the alleged conditions, including the dates and time period during

which the alleged conditions and pattern or practice of resistance occurred; and (iii) the

minimum measures which the Attorney General believes may remedy the alleged conditions and

the alleged pattern or practice of resistance.” 42 U.S.C. § 1997c(b)(1)(A). The Attorney General

has further personally certified that he believes that intervention by the United States is of

general public importance and will materially further the vindication of rights, privileges, and

immunities secured or protected by the Constitution or laws of the United States. 42 U.S.C.

§ 1997c(b)(1)(B). The Attorney General’s certification is set forth in the United States’ Notice

of Motion, which has been personally signed by Attorney General Eric Holder. 42 U.S.C.

§ 1997c(b)(2), (c).

Given that these requirements have been met, the Attorney General “may intervene” in

this action. 42 U.S.C. § 1997c(a)(1). As the Supreme Court has made clear, in statutes of this

nature, the “statutory term ‘may intervene’ . . . means ‘may intervene if the [individual

empowered to intervene, here the Attorney General] so chooses’ rather than ‘may intervene in

the discretion of the court.’” Bhd. of RR Trainmen, 331 U.S. at 531. Accordingly, CRIPA gives

the Attorney General an absolute right to intervene in this action. See id.; see also Ruiz, 161 F.3d

at 828 (“Rule 24(a)(1) ‘statutory intervenors’ need not show inadequacy of representation or that

their interests may be impaired if not allowed to intervene . . . [or] even prove a ‘sufficient’

interest relating to the subject matter of the controversy, since Congress has already declared that

interest sufficient by granting the statutory right to intervene.”)

C. The United States Is Also Entitled to Intervention of Right Pursuant
to Rule 24(a)(2)

In addition to having an unconditional right to intervene pursuant to CRIPA and Rule

24(a)(1), the United States easily meets the standard for intervention of right pursuant to Rule

24(a)(2). A Court should grant a timely motion for intervention as of right under Rule 24(a)(2)

where the movant has a “direct, substantial, and legally protectable” interest in the subject matter

of the litigation. Floyd, 770 F.3d at 1060 (quoting Bridgeport Guardians, Inc. v. Delmonte, 602

F.3d 469, 473 (2d Cir. 2010)) (internal quotation marks omitted). “[A]n interest that is remote

from the subject matter of the proceeding, or that is contingent upon the occurrence of a

sequence of events before it becomes colorable, will not satisfy the rule.” Floyd, 770 F.3d at

1060 (quoting Brennan v. N.Y.C. Bd. of Educ., 260 F.3d 123, 124 (2d Cir 2001)) (internal

quotation marks omitted). Additionally, the movant must “demonstrate that the interest may be

impaired by the disposition of the action, and [] show that the interest is not protected adequately

by the parties to the action.” City of New York, 198 F.3d at 364 (quoting Catanzano v. Wing, 103

F.3d 223, 232 (2d Cir. 1996)). “The various components of the Rule are not bright lines, but

ranges . . . . Application of the Rule requires that its components be read not discretely, but

together. A showing that a very strong interest exists may warrant intervention upon a lesser

showing of impairment or inadequacy of representation.” United States v. Hooker Chemicals &

Plastics Corp., 749 F.2d 968, 983 (2d Cir. 1984). Furthermore, the “requirements for

intervention embodied in Rule 24(a)(2) must be read also in the context of the particular

statutory scheme that is the basis for the litigation and with an eye to the posture of the litigation

at the time the motion is decided.” Id.

1. The United States Has a Protectable Interest

The United States clearly has a “direct, substantial, legally protectable” interest in these

proceedings. Floyd, 770 F.3d at 1060 (quoting Bridgeport Guardians, 602 F.3d at 473) (internal

quotation marks omitted). First, the United States bases its claims here on many of the very

same facts and conditions asserted by plaintiffs, namely the systematic and widespread use of

excessive and unnecessary force by correction officers against inmates at Rikers. Compare

United States’ Proposed Complaint with Plaintiffs’ Amended Complaint [Dkt. No. 15]. Its

interest is thus neither remote nor contingent but relates directly to the subject matter of the

existing litigation. See Floyd, 770 F.3d at 1060.

Moreover, the United States has a sovereign interest in the protection and enforcement of

the Subject Inmates’ constitutional rights and protections under federal law. CRIPA gives the

United States standing to institute civil litigation to obtain equitable relief “to insure the

minimum corrective measures necessary to insure the full enjoyment of such rights, privileges,

or immunities” secured or protected by the Constitution or laws of the United States for

individuals confined to a correctional facility. 42 U.S.C. § 1997a. As the United States is

responsible for ensuring the “full enjoyment” of the Subject Inmates’ rights to constitutional

conditions of confinement, it has a substantial and legally protectable interest in the current

litigation, in which plaintiffs seek to enforce those same rights for a larger set of inmates. Id.

2. This Case May Impair the United States’ Ability To Protect Its Interest

Absent intervention, the United States’ interest “may be impaired by the disposition of

the action.” City of New York, 198 F.3d at 364. The United States satisfies this requirement

because any resolution of this case may impair its ability to protect its sovereign interest

described above.

Allowing the current litigation to proceed without the United States will impede the

United States’ ability to ensure that an adequate set of comprehensive reforms are put in place to

fully address the constitutional deficiencies that it has identified, and will require the United

States to file a separate, duplicative lawsuit to protect its interests. As a practical matter, as noted

above, the parties are currently engaged in settlement discussions, and could agree to settle this

action on terms that will directly affect the United States’ interests. For example, the United

States has identified significant, systemic problems with DOC’s policies and practices regarding

use of force reporting, investigations, and measures to hold DOC staff accountable for excessive

and unnecessary force. All of these issues require substantial remedial measures. See United

States’ Findings Letter, Ex. A to United States’ Proposed Complaint. Plaintiffs, however, have

also identified these very same issues as important to any settlement of this action.

Notwithstanding the joint settlement discussions that have taken place over the last several

weeks, unless the United States formally intervenes in this action, the parties could agree to

reforms in these areas without agreement by the United States. While the United States

theoretically could require additional changes in these areas were it subsequently to bring its own

lawsuit, such an outcome would not be efficient or desirable. The United States’ intervention

will ensure that the remedial measures it has identified as necessary are included in any mutually

agreed upon settlement or other court order.

Lastly, the United States is responsible for ensuring the constitutional rights of

institutionalized persons nationwide, and an adverse ruling on the United States’ motion to

intervene here could negatively impact the United States’ ability to bring CRIPA enforcement

actions nationally. Cf. Smith v. Pangilinan, 651 F.2d 1320, 1324-25 (9th Cir. 1981) (finding

Attorney General, charged with administering immigration, had protected interest in construction

and application of immigration law, and that Attorney General had right to intervene because of

a possible stare decisis impairment).

3. The Existing Parties May Not Adequately Represent the United States’ Interest

The existing parties to this class action lawsuit may not represent the United States’

interests adequately, satisfying the final requirement for intervention as of right. The burden of

establishing inadequacy of representation is “minimal.” Trbovich v. United Mine Workers of

America, 404 U.S. 528, 538 n.10 (1972). An applicant need not demonstrate a certainty that the

existing parties will inadequately represent its interests, only that such representation “may be”

inadequate. Id. The Second Circuit has, however, “demanded a more rigorous showing of

inadequacy in cases where the putative intervenor and a named party have the same ultimate

objective. Where there is an identity of interest . . . the movant to intervene must rebut the

presumption of adequate representation by the party already in the action.” Butler, Fitzgerald &

Potter v. Sequa Corp., 250 F.3d 171, 179-80 (2d Cir. 2001) (internal citation omitted).

As an initial matter, while the allegations stated in the United States’ CRIPA findings

letter of August 2014 and its Proposed Complaint substantially overlap with the claims stated in

plaintiffs’ class complaint, they are also broader than plaintiffs’ claims in some ways. For

example, the United States has alleged that DOC’s use of punitive segregation for the Subject

Inmates is excessive and inappropriate, and that inadequate supervision of the Subject Inmates

results in high levels of inmate-on-inmate violence. Plaintiffs therefore cannot – and should not

– be expected to make all of the United States’ arguments. This lack of identity of arguments

and certain ultimate objectives is sufficient to satisfy the minimal burden of demonstrating

inadequacy of representation. See Kleissler v. U.S. Forest Serv., 157 F.3d 964, 973-74 (3d Cir.

1998) (concluding that federal government agency and private businesses seeking to intervene

had “interests inextricably intertwined with, but distinct from” each other and thus government’s

representation of private interests would be inadequate).

More generally, while it is true that plaintiffs and the United States share the same goal of

ensuring constitutional conditions at Rikers, the United States’ interest is far broader as it is

charged by statute with representing the public interest on a national scale. Specifically, the

United States is tasked with remedying conditions of confinement that deprive institutionalized

persons, here the Subject Inmates, “of any rights, privileges, or immunities secured or protected

by the Constitution or laws of the United States causing them to suffer grievous harm.”

42 U.S.C. § 1997c (a)(1). While this responsibility may overlap with plaintiffs’ interests, the

United States’ interests extend beyond class members’ claims to include ensuring that DOC

provides comprehensive constitutional conditions and complies with federal laws regarding its

obligations to protect the Subject Inmates from any harm. See JLS, Inc. v. Pub. Serv. Comms’n

of West Virginia, 321 Fed. Appx. 286, 290 (4th Cir. 2009) (explaining that “even when a

governmental agency’s interests appear aligned with those of a particular private group at a

particular moment in time, the ‘government’s position is defined by the public interest, not

simply the interests of a particular group of citizens.’”) (quoting Feller v. Brock, 802 F.2d 722,

730 (4th Cir. 1986)) (internal brackets omitted). Thus, it cannot be claimed that the parties’

similar objectives equate to adequate representation of the United States’ interest. Cf. Sierra

Club v. Espy, 18 F.3d 1202, 1208 (5th Cir. 1994) (holding that intervention by private industry

group in suit against government is appropriate because “[t]he government must represent the

broad public interest, not just the [concerns of the industry group].”); see also Forest

Conservation Council v. U.S. Forest Serv., 66 F.3d 1489, 1499 (9th Cir. 1995) (holding that

intervention applicants have “more narrow, parochial interests” than the government); Natural

Resources Defense Council v. Costle, 561 F.2d 904, 912 (D.C. Cir. 1977) (holding that

government and individual interests may not coincide where government is “broadly concerned16

with implementation and enforcement of the settlement agreement” and individuals are “more

narrowly focused”).

Finally, private individuals – even a class of private individuals – are not tasked with the

responsibility of representing the public interest on behalf of the government. While there is a

presumption that a government entity’s representation of a private applicant’s interests is

adequate where the government is charged by law with representing those interests, the

presumption clearly does not hold in the reverse. Understandably, individuals need only

advocate for their own narrower or parochial views. Cf. Hooker Chemicals, 749 F.2d at 987

(strong showing of inadequate representation required in enforcement action by government

before allowing intervenors “to disrupt the government’s exclusive control over the course of its

litigation”). Accordingly, plaintiffs here cannot and should not be expected to represent the

public interest on behalf of the United States.

B. The United States Is Entitled to Permissive Intervention

Should the Court decline to grant the United States intervention of right, it should, in its

discretion, nevertheless grant the United States permissive intervention. Permissive intervention

is appropriate where a movant “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). A court, in exercising its discretion,

“must consider whether the intervention will unduly delay or prejudice the adjudication of the

original parties’ rights.” Fed. R. Civ. P. 24(b)(3). “The district court’s discretion under Rule

24(b)(2) is very broad.” H.L. Hayden Co. of NY v. Siemens Med. Sys. Inc., 797 F.2d 85, 89 (2d

Cir. 1986).

The United States’ CRIPA and Section 14141 claims clearly share common questions of

fact and law with the plaintiffs’ claims in this action. Both the United States and plaintiffs allege

that DOC staff subject inmates at Rikers to unnecessary and excessive use of force, thereby

causing them harm in violation of their rights under the Constitution.

In addition, intervention by the United States will not delay the proceedings or prejudice

the original parties because the parties and the United States are all at the stage of settlement

discussions. As noted, the parties have been engaged in settlement negotiations for several

months, as have the United States and the City of New York. Indeed, in recent weeks, these

negotiations have proceeded jointly, and the parties and the United States agree that they will

need additional time to reach a resolution. The United States’ intervention will allow for the

most efficient and effective method of resolving both this litigation and the United States’

CRIPA investigation, conserving judicial resources and saving the parties and the United States

from expending additional time and money on unnecessary litigation. This, in turn is likely to

provide the fastest means of implementing reforms and bringing about real and lasting change to

Rikers Island.

Accordingly, permissive intervention is appropriate.

CONCLUSION

For the foregoing reasons, the United States respectfully requests that this Court grant its

motion to intervene.

Dated: December 18, 2014
New York, New York

PREET BHARARA
United States Attorney

/s/ Emily E. Daughtry
JEFFREY K. POWELL
EMILY E. DAUGHTRY
Assistant United States Attorneys
86 Chambers Street
New York, NY 10007
Tel.: (212) 637-2706/2777
[email protected]
[email protected]

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