Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987)

Author: Justice Brennan

Show Summary

Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987)

JUSTICE BRENNAN, with whom JUSTICE MARSHALL joins, concurring in part and concurring in the judgment.

I join all of the Court’s opinion except Part II-B. In that Part, the Court rejects CNA’s argument that the District Court’s order granting permissive intervention and placing constraints on CNA’s participation in the litigation "constructively denied" CNA’s motion to intervene, and therefore rendered it an appealable order. Ante at 378. I agree with the Court’s decision to reject this argument, and with its reasoning that "CNA is a participant in the proceeding, and has alternative means for challenging the order." Ibid. (emphasis added). In explaining what those alternative means are, however, the Court refers only to "CNA’s ability to raise its claims on post-judgment appeal." Ibid. With all respect, this explanation is insufficient.

The premise of CNA’s argument that its right to intervene was constructively denied is that CNA will not be able to obtain effective review of the restrictions placed on its participation on postjudgment appeal. CNA argues that, in this complex protracted litigation, the "`right’ to appeal will be academic, at best," and that, consequently, "CNA’s ability to press for the strongest possible cleanup order will indeed be `irretrievably lost.’" Ante at 376. The Court concedes that this premise "may be true to some degree." Ibid. To reject CNA’s argument that its right of participation was constructively denied by pointing to the availability of a remedy that may be "academic at best," however, is to skirt the very question CNA is asking us to resolve.

There are more persuasive reasons to reject CNA’s argument. First, it would be inconsistent to afford a permissive intervenor a right to appeal that would be denied an intervenor of right or an original party on whose participation severe restrictions had been placed. Second, if the conditions imposed on a party would have the practical effect of denying that party the right to participate in the litigation, and if post-judgment appeal is likely to prove ineffective, the available means of relief include a petition to the Court of Appeals for a writ of mandamus. Before elaborating on these points, however, it is necessary briefly to review the distinction between permissive intervention and intervention of right.

Federal Rule of Civil Procedure 24 distinguishes a permissive intervenor from an intervenor of right by the stake each has in the litigation. The intervenor of right has an interest in the litigation that it cannot fully protect without joining the litigation, while the permissive intervenor does not. Accordingly, a district court has less discretion to limit the participation of an intervenor of right than that of a permissive intervenor.{1}

This case illustrates the practical significance of the distinction between these types of intervention. While CNA’s difficulties stem directly from the restrictions placed on its participation in the litigation, those restrictions are unlikely to be viewed as an abuse of discretion unless CNA was actually entitled to intervention of right. Nevertheless, even assuming, arguendo, that the District Court erred in denying intervention of right, and consequently that it erred in imposing severe restrictions on CNA’s participation, CNA should not be permitted to appeal the District Court’s interlocutory order.

First, restrictions on participation may also be placed on an intervenor of right and on an original party.{2} If we were to accept CNA’s theory of constructive denial, then it would follow that an intervenor of right also could appeal restrictions placed on its participation as a constructive denial of the right to intervene. And if an intervenor of right is to be afforded such an appeal, there is no reason to deny an appeal to an original party. For example, an original party could seek to appeal an order denying crucial discovery as an order which constructively entered summary judgment. To allow such appeals would seriously disrupt appellate procedure, and due respect for the finality doctrine counsels that the Court avoid taking steps toward that end.

Second, the alternative means of relief available to CNA, and available to an original party or intervenor of right facing similar restrictions, include the ability to petition the Court of Appeals for a writ of mandamus under the All Writs Act, 28 U.S.C. § 1651. Mandamus is an appropriate avenue for relief from orders unsuited to appellate review under the collateral order doctrine; such orders are not representative of a class of orders for which interlocutory review is generally needed, but sometimes involve extraordinary circumstances giving rise to a compelling demand for pretrial relief. See 9 J. Moore, B. Ward, & J. Lucas, Moore’s Federal Practice ¶ 110.10, p. 136 (2d ed. 1986); 16 C. Wright, A. Miller, E. Cooper, & E. Gressman, Federal Practice and Procedure § 3934 (1977 and Supp. 1986); cf. Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 232 (1979) (REHNQUIST, J., concurring) ("[O]ur cases and those of the Courts of Appeals hold that review of the granting or denial of discovery is not immediately reviewable, except perhaps by way of mandamus for gross abuse of discretion on the part of the trial court"); Community Broadcasting of Boston, Inc. v. FCC, 546 F.2d 1022, 1028 (CA9 1976) (petition for writ of mandamus appropriate for orders which, as a class, do not qualify as collateral orders, but which in individual circumstances might work irreparable harm).

It is true, of course, that mandamus is to be granted "only in extraordinary situations," Kerr v. United States District Court, 426 U.S. 394, 402 (1976), and that

the All Writs Act [should not be construed to] confe[r] an independent appellate power in the Courts of Appeals to review interlocutory orders.

La Buy v. Howes Leather Co., 352 U.S. 249, 263 (1957) (BRENNAN, J., dissenting). The writ may properly issue, however, when

the action of the District Court tends to frustrate or impede the ultimate exercise by the Court of Appeals of its appellate jurisdiction granted in some other provision of the law.

Id. at 264. Lower courts have therefore found the writ appropriate when " by later appeal seems difficult." 16 Wright, Miller, Cooper, & Gressman, supra, § 3934, p. 238. See, e.g., In re EEOC, 709 F.2d 392 (CA5 1983) (issuing writ to vacate discovery order that was effectively unreviewable on appeal); Hamilton v. Morial, 644 F.2d 351 (CA5 1981) (issuing writ to consolidate all pending suits alleging unconstitutional overcrowding in state prisons and jails). Thus, although CNA’s argument that the order here is effectively unreviewable on appeal does not constitute persuasive grounds for affording CNA an interlocutory appeal, the argument could properly be made in support of a petition for mandamus. Through that petition, CNA could seek review of both the denial of intervention of right and of the imposition of conditions, because, as explained above, the resolution of the former determines the scope of the District Court’s discretion in issuing the latter.

I conclude that CNA cannot appeal the interlocutory orders limiting its participation in this lawsuit as a constructive denial of its motion to intervene. CNA has available to it the "alternative means" available to any original party or intervenor of right seeking relief from extraordinarily prejudicial interlocutory orders, including the right to appeal from a final judgment and the right to petition for a writ of mandamus. I therefore concur in the judgment and join all but Part II-B of the opinion of the Court.

1. Even highly restrictive conditions may be appropriately placed on a permissive intervenor, because such a party has, by definition, neither a statutory right to intervene nor any interest at stake that the other parties will not adequately protect or that it could not adequately protect in another proceeding. Fed.Rule Civ.Proc. 24(b). Indeed, the decision whether to grant permissive intervention resides largely in the discretion of the district court. Rule 24(b) provides that a party that has demonstrated a conditional right to intervene granted by federal statute, or a claim or defense that shares with the main action a common question of law or fact, "may be permitted to intervene," and that,

[i]n exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties

(emphasis added). Accordingly, an order denying a motion for permissive intervention is assumed to "hav[e] no adverse effect on the applicant," and such an order is not appealable absent abuse of discretion. Railroad Trainmen v. Baltimore & Ohio R. Co., 331 U.S. 519, 524 (1947).

By contrast, an intervenor of right has, by definition, either an unconditional right to intervene granted by federal statute or an interest at stake which the other parties will not fully protect, and which the intervenor can fully protect only by joining the litigation. Rule 24(a). Such a party therefore has an interest in the subject matter of the litigation similar to that of the original parties. Rule 24(a) considerably restricts the court’s discretion whether to allow intervention of right by providing that such a party "shall be permitted to intervene" (emphasis added). Thus, in Railroad Trainmen, the Court held that a party denied intervention of right (where no permissive intervention is sought) may appeal the order immediately. 331 U.S. at 524.


An intervention of right under the amended rule [24(a)] may be subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of proceedings.

Advisory Committee Notes on Fed.Rule Civ.Proc. 24, 28 U.S.C.App. p. 567. And as the Court observes, a district court will not infrequently issue pretrial orders dismissing claims or restricting the scope of discovery that may compromise the ability of original parties to protect their interests, and that may not be effectively reviewable on appeal. Ante at 377; see, e.g., Kerr v. United States District Court, 426 U.S. 394 (1976) (discovery order limiting ability of plaintiffs to pursue claims).


Related Resources

None available for this document.

Download Options

Title: Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987)

Select an option:

*Note: A download may not start for up to 60 seconds.

Email Options

Title: Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987)

Select an option:

Email addres:

*Note: It may take up to 60 seconds for for the email to be generated.

Chicago: Brennan, "Brennan, J., Concurring," Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987) in 480 U.S. 370 480 U.S. 381–480 U.S. 385. Original Sources, accessed March 29, 2023,

MLA: Brennan. "Brennan, J., Concurring." Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987), in 480 U.S. 370, pp. 480 U.S. 381–480 U.S. 385. Original Sources. 29 Mar. 2023.

Harvard: Brennan, 'Brennan, J., Concurring' in Stringfellow v. Concerned Neighbors, 480 U.S. 370 (1987). cited in 1987, 480 U.S. 370, pp.480 U.S. 381–480 U.S. 385. Original Sources, retrieved 29 March 2023, from