J.B. STRINGFELLOW, JR., ET AL., PETITIONERS V. CONCERNED NEIGHBORS IN ACTION, ET AL. No. 85-184 In The Supreme Court Of The United States October Term, 1986 On Writ Of Certiorari To The United States Court Of Appeals For The Ninth Circuit Brief For The United States As Respondent Supporting Petitioners TABLE OF CONTENTS Opinions below Jurisdiction Statute involved Question presented Statement Summary of argument Argument: A district court order granting limited permissive intervention but denying intervention as of right is not immediately appealable to the court of appeals A. Only narrowly limited categories of district court rulings may be reviewed on appeal prior to the entry of a final judgment in the case B. The district court's order, however characterized, does not qualify as an appealable collateral order Conclusion OPINIONS BELOW The initial opinion of the court of appeals dismissing the appeal for want of appellate jurisdiction (Pet. App. A22-A25) is unreported. The second opinion, withdrawing the initial opinion (Pet. App. A26-A27), is unreported. The order of the court of appeals reversing in part and vacating in part an order of the district court, and remanding the case to the district court (Pet. App. A1-A2) is reported at 755 F.2d 1383. The final opinion of the court of appeals (Supp. Pet. App. A5-A20) is reported at 783 F.2d 821. The opinion of the district court (Pet. App. A3-A21) is unreported. JURISDICTION The judgment of the court of appeals was entered on March 18, 1985. On May 30, 1985, Justice Rehnquist extended the time for filing a petition for a writ of certiorari to and including August 1, 1985. The petition was filed on that date and was granted (limited to Question 1) on June 2, 1986. The jurisdiction of this Court rests on 28 U.S.C. 1254(1). STATUTE INVOLVED 28 U.S.C. 1291 provides in relevant part: The courts of appeals * * * shall have jurisdiction of appeals from all final decisions of the district courts of the United States * * * . QUESTION PRESENTED Whether a district court order granting limited permissive intervention but denying intervention as of right is immediately appealable to the court of appeals. STATEMENT 1. Petitioners are defendants in an action brought by the respondents United States and the State of California to abate the release of hazardous substances from the Stringfellow Acid Pits, an abandoned toxic waste disposal site near Riverside, California. The suit, originally filed on April 21, 1983, names as defendants 28 persons, corporations, or entities who allegedly either generated or transported wastes that were dumped at the Stringfellow Acid Pits or owned or operated the pits during the period of dumping (E.R. 356-367). /1/ Some of the defendants have counterclaimed against a variety of state agencies and the United States Air Force and Navy (E.R. 614). In addition, some of the defendants have filed third-party complaints naming more than 100 entities as third-party defendants (E.R. 613). As amended, the complaint alleges 11 separate claims for relief, but the relief sought falls into only two general categories. First, under the "imminent and substantial endangerment" provisions of the applicable federal environmental statutes and under California tort law, /2/ the complaint seeks an injunction requiring the defendants to "abate the release and threatened release of hazardous substances" and to "undertake such action as may be necessary to remedy the conditions which have caused or may contribute to or present an imminent and substantial endangerment to the public health, welfare and the environment" (E.R. 400-401). The second form of relief sought by the plaintiff governments is reimbursement of the funds spent by the United States and the State of California for response, removal, and remedial costs and for damage to natural resources. /3/ 2. On July 15, 1983, respondents Concerned Neighbors in Action, a nonprofit corporation, and Penny Newman, a resident of the vicinity of the waste disposal site, sought leave to intervene (E.R. 55, 108). /4/ Respondents claimed that they had the right to intervene pursuant to Fed. R. Civ. P. 24(a)(1), on the basis of the citizen suit provisions of the various federal environmental statutes involved in this suit (E.R. 66-67). /5/ Alternatively, they argued that they were entitled to intervene as a matter of right pursuant to Fed. R. Civ. P. 24(a)(2), because they had interests which could be practically impaired by this suit and because their representation by the existing parties was inadequate (E.R. 78-82). Finally, respondents asserted that they should be permitted to intervene pursuant to Fed. R. Civ. P. 24(b) because they sought to raise claims that have questions of law and fact in common with those already presented by the government plaintiffs in this case (E.R. 83). The proposed complaint in intervention (E.R. 108) named the same defendants as does the government plaintiffs' complaint, and the first nine claims for relief parallel those of the government plaintiffs (E.R. 146-165). The remaining eight claims for relief (Numbers 10-17), however, present claims that had not already been pled by the government plaintiffs (E.R. 165-179). /6/ The government plaintiffs supported respondents' motion to intervene insofar as they sought permissive intervention under Rule 24(b), on the condition that the respondents should be permitted to raise and address only those claims that had already been asserted by the plaintiffs and defendants (E.R. 254). The government plaintiffs opposed respondents' motion to intervene as a matter of right, and suggested that, should the court grant intervention as of right pursuant to Rule 24(a), "it should place the same conditions on the intervention as of right" as the plaintiffs proposed for permissive intervention (E.R. 254). Several petitioners also opposed intervention as of right but suggested that permissive intervention could be granted if certain conditions were imposed (E.R. 228). The conditions suggested by petitioners were more extensive than those requested by the plaintiff governments. In addition to limiting the claims to those raised by the original parties, petitioners sought to deny intervenors the opportunity to participate in the cost recovery aspects of the litigation and to limit their participation to the remedial aspects of the case (E.R. 235-236). Petitioners also requested limitations on discovery and motions initiated by respondents (E.R. 237-238). 3. The district court granted respondents permission to intervene pursuant to Fed. R. Civ. P. 24(b) (Pet. App. A3-A21). However, the district court concluded that the citizen suit provisions of the various federal statutes did not grant respondents the right to intervene under Rule 24(a)(1) (Pet. App. A5-A14). The court also ruled that respondents' interests would be adequately represented by the existing parties (id. at A15-A18). Accordingly, the court denied respondents' motion to intervene as of right pursuant to Rule 24(a)(2) (Pet. App. A18). In granting permissive intervention under Rule 24(b), the district court imposed several conditions on respondents in this litigation. First, as both the government plaintiffs and petitioners had requested, the district court found that the additional claims that respondents sought to raise would "burden and expand an already complex litigation" (Pet. App. A19). Accordingly, respondents were permitted to litigate only those claims that had been raised by the original parties (ibid.). Second, as requested by petitioners, the district court found that respondents' interest in the cost recovery claims under Section 107 of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9607, Section 311 of the Clean Water Act (CWA), 33 U.S.C. (& Supp. II) 1321, and state law was akin to the interest of a taxpayer (Pet. App. A20). Accordingly, because the court concluded that respondents lacked standing to sue on that basis, the court refused to allow them to intervene as to those claims. Finally, to minimize delay and confusion in discovery, the district court restricted respondents' right to initiate discovery or motions (ibid.). The court emphasized that the intervenors would nevertheless be able to participate in discovery and to receive copies of all materials the same as any other party (ibid.). 4. Respondents filed a notice of appeal from the district court's order. On May 1, 1984, the court of appeals dismissed the appeal (Pet. App. A23). On June 4, the court issued an opinion explaining the basis for its May 1 order (id. at A22-A25). The court of appeals ruled that the district court's order was not an appealable final order because "(respondent's) interests are protected adequately by their participation as permissive intervenors" (id. at A24). Relying upon Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d 543 (1st Cir. 1982), and Shore v. Parklane Hosiery Co., 606 F.2d 354 (2d Cir. 1979), the court also held that the restrictions imposed by the district court on respondents' participation in the suit did not render the district court's order immediately appealable "absent obvious prejudicial error," which the court did not find (Pet. App. A24-A25). Finally, relying on Carson v. American Brands, Inc., 450 U.S. 79 (1981), the court of appeals rejected respondents' argument that the district court's order was immediately appealable under 28 U.S.C. 1292(a)(1) as a denial of injunctive relief. The court found that respondents had failed to demonstrate that they would suffer any serious, irreparable injury from the district court's order or would be unable to challenge that order at some later point in this suit (Pet. App. A25). On respondents' petition for rehearing, the court of appeals issued an order withdrawing its June 4 opinion and ruling that the district court's order was immediately appealable (Pet. App. A26-A27). The court explained (id. at A26) that a prior Ninth Circuit decision, California v. Block, 690 F.2d 753 (1982), had ruled that intervention orders like the one at issue in this case are immediately appealable under 28 U.S.C. 1291. The court of appeals denied a suggestion for rehearing en banc filed by one of the petitioners and set an expedited briefing schedule for the appeal (Pet. App. A28-A29). On March 18, 1985, shortly after oral argument on the merits of respondents' appeal, the court of appeals issued an order reversing the district court's denial of respondents' motion for leave to intervene as of right and vacating the order granting permissive intervention (Pet. App. A1). /7/ The order expressed no view as to the appropriateness of the conditions that had been imposed by the district court on respondents' participation as permissive intervenors, and the order did not address the propriety of imposing conditions on respondents' intervention as of right (id. at A2). The order stated that "(a)n opinion will follow" (ibid.). Eleven months later, on February 18, 1986, the court of appeals issued its opinion (Supp. Pet. App. A5-A20). On the question of appellate jurisdiction, the court reiterated its view that it was bound by its prior ruling in California v. Block, supra, that orders denying intervention as of right and granting permissive intervention are immediately appealable (Supp. Pet. App. A10-A11). On the merits, the court ruled that respondents had to make only a minimal showing that the existing parties -- the federal and state plaintiffs and petitioners -- would not adequately represent their interests (id. at A16). The court found that petitioners had made this showing because of the existence of counterclaims and third party claims against agencies of the plaintiff governments (id. at A16-A19). Meanwhile, on August 1, 1985, petitioners, the owner, generator, or transporter defendants in the underlying action, filed the present petition for a writ of certiorari from the order of the court of appeals reversing and vacating the decision of the district court. On April 2, 1986, petitioners filed a supplemental brief in support of their petition for a writ of certiorari addressing the February 18, 1986, opinion of the court of appeals. On June 2, 1986, this Court granted the petition for a writ of certiorari limited to the question whether the district court's order granting respondent's motion for permission to intervene but denying their motion for intervention as of right was immediately appealable to the court of appeals. SUMMARY OF ARGUMENT The court of appeals held that a district court order granting limited permissive intervention, but denying intervention as of right, is immediately appealable. That ruling is plainly in error. An order of that type does not terminate the litigation, and is immediately appealable only if it fits within the "collateral order" exception to the final judgment rule adopted in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). The district court's intervention order does not satisfy the strict requirements necessary to qualify as a collateral order, however, and the court of appeals should have dismissed respondents' appeal. 1. A district court order denying a would-be intervenor's application to intervene as of right and excluding the applicant from the suit is immediately appealable, since an applicant who is excluded from a suit cannot appeal from the entry of a final judgment. See Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., 331 U.S. 519 (1947). That rule has no application to this case, however. By permitting respondents to intervene, the district court made respondents parties to this case and enabled them to appeal from the entry of a final judgment. By itself, then, the district court's denial of respondents' application to intervene as of right is of no consequence: that aspect of the court's order does not hamper respondents' ability ultimately to protect their interests in this suit, nor does it prevent them from appealing an adverse final judgment. 2. The conditions imposed on respondents' participation as permissive intervenors does not render the district court's intervention order immediately appealable. First, Rule 24 allows a district court to impose conditions on an intervenor's participation in a suit. A district court's exercise of the authority granted by Rule 24 therefore does not amount to the denial of intervention. Second, because respondents are a party to this suit, they can challenge the restrictions imposed by the district court on appeal from the entry of a final judgment. If respondents are dissatisfied with the judgment entered by the district court and if their contentions are well grounded in fact and law, respondents will be able to obtain alternative or additional relief from the court of appeals, or a new trial. The district court's order therefore is not immediately appealable, because it is not effectively unreviewable on appeal from a final judgment. Put more broadly, respondents are in the same position as a party who has had a claim dismissed or who has been limited in the discovery it may undertake. Once respondents became parties to the case, they became subject to the same rules governing the availability of interlocutory appellate review that the original parties must live by. Since none of the other parties to this suit could challenge on an interlocutory appeal a ruling by the district court dismissing one or more claims or defenses, or limiting the scope of discovery, respondents should not be permitted to do so simply because they became parties by intervening in this suit. 3. There is no reason to conclude that district court orders imposing conditions on an intervenor's participation in a case will, in the mine run of cases, satisfy the three-part test for determining the appealability of interlocutory district court orders set forth in Coopers & Lybrand v. Livesay, 437 U.S. 463, 468 (1978). Nor is there anything extraordinary about this case that takes it out of the general rule that interlocutory review of such district court orders is unavailable. Respondents' argument that immediate appellate review is necessary to allow them to have a role in the selection of the abatement and cleanup remedies ordered by the district court overlooks the fact that respondents are parties to the suit and can participate in the remedial phase of this case. ARGUMENT A DISTRICT COURT ORDER GRANTING LIMITED PERMISSIVE INTERVENTION BUT DENYING INTERVENTION AS OF RIGHT IS NOT IMMEDIATELY APPEALABLE TO THE COURT OF APPEALS A. Only Narrowly Limited Categories Of District Court Rulings May Be Reviewed On Appeal Prior To The Entry Of A Final Judgment In The Case "Finality as a condition of review," the Court has often explained, "is an historic characteristic of federal appellate procedure." Cobbledick v. United States, 309 U.S. 323, 324 (1940). See also, e.g., Flanagan v. United States, 465 U.S. 259, 265 (1984); United States v. Hollywood Motor Car, Co., 458 U.S. 263, 265 (1982). As the Court stated in DiBella v. United States, 369 U.S. 121, 124 (1962), "(t)he general principle of federal appellate jurisdiction, derived from the common law and enacted by the First Congress, requires that review of nisi prius proceedings await their termination by final judgment." And a "final judgment" for this purpose is one that "ends the litigation on the merits and leaves nothing for the court to do but execute the judgment." Catlin v. United States, 324 U.S. 229, 233 (1945); accord Firestone Tire & Rubber Co. v. Risjord, 449 U.S. 368, 373 (1981); Coopers & Lybrand v. Livesay, 437 U.S. 463, 467 (1978). The final judgment rule serves salutary purposes in both civil and criminal cases. By consolidating in one appeal all of the grounds for challenging a trial court's judgment, the rule avoids delay, promotes efficient judicial administration, and reduces the ability of litigants to harass opponents by engaging in a succession of time-consuming and costly appeals. The final judgment rule also lessens the risk that appellate courts will render abstract rulings on questions of law presented in an insufficiently developed factual context -- and which, indeed, may prove to be immaterial to the ultimate disposition of the case. And most importantly, the final judgment rule gives effect to Congress's determination that litigation is best managed at both the trial and appellate levels if the district courts are free of releated second-guessing by the courts of appeals during the prejudgment stages of a case. See, e.g., Richardson-Merrell, Inc. v. Koller, No. 84-127 (June 17, 1985), slip op. 9, 11; Flanagan, 465 U.S. at 263-265; Firestone, 449 U.S. at 374; Eisen v. Carlisle & Jacquelin, 417 U.S. 156, 170-171 (1974); Cobbledick, 309 U.S. at 324-326; Catlin, 324 U.S. at 234. In sum, as the Court stated in Cobbledick v. United States, "finality * * * is the means for achieving a healthy legal system" (309 U.S. at 326). For these reasons, this Court has long held that "the policy of Congress embodied in (28 U.S.C. 1291) is inimical to piecemeal appellate review of trial court decisions" (Hollywood Motor Car Co., 458 U.S. at 265). A district court order denying a petition to intervene of right, but granting a petition for limited, permissible intervention obviously does not terminate the litigation and therefore does not constitute a final judgment for purposes of 28 U.S.C. 1291. Accordingly, the district court's ruling on respondents' motion to intervene in this case is immediately appealable only if it fits within one of the few, strictly limited exceptions to the final judgment rule. The only such exception relevant here is the "collateral order" doctrine adopted by this Court in Cohen v. Beneficial Indus. Loan Corp., 337 U.S. 541 (1949). /8/ Cohen held that a narrow category of trial court orders that are collateral to the litigation can be immediately appealed if certain stringent requirements are satisfied. 337 U.S. at 546-547. The "small class" of prejudgment orders subject to immediate appellate review, Cohen stated, are those which "finally determine claims of right separable from, and collateral to, rights asserted in the action, (and are) too important to be denied review and too independent of the cause itself to require that appellate consideration be deferred until the whole case is adjudicated" (id. at 546). As the Court has since explained, to qualify as an appealable collateral order excepted by Cohen from the final judgment rule, a district court order, at a minimum, must satisfy three different criteria: (1) it must conclusively determine the disputed question; (2) it must resolve an important issue completely separate from the merits of the action; and (3) it must be effectively unreviewable on appeal from the entry of a final judgment. E.g., Richardson-Merrell, slip op. 6; Flanagan, 465 U.S. at 265; Hollywood Motor Car Co., 458 U.S. at 265; Firestone, 449 U.S. at 375; Coopers & Lybrand, 437 U.S. at 468; Abney v. United States, 431 U.S. 651, 658 (1977). /9/ Because of the historic policy against piecemeal appellate review, however, this Court has repeatedly emphasized that the collateral order doctrine is a narrow and limited exception to the final judgment rule. The collateral order doctrine permits immediate appellate review of a trial court order only when strict observance of the final judgment rule "would render impossible any review whatsoever" (United States v. Ryan, 402 U.S. 530, 533 (1971)) or "'would practically defeat the right to any review at all'" (Flanagan, 465 U.S. at 265 (citation omitted)). The doctrine has therefore been limited to "trial court orders affecting rights that will be irretrievably lost in the absence of an immediate appeal" (Richardson-Merrell, slip op. 6). See also Hollywood Motor Car Co., 458 U.S. at 266; United States v. MacDonald, 435 U.S. 850, 860 (1978). The paradigmatic example of an appealable collateral order is a trial court ruling that allegedly denies a party the right to be free of the burdens of trial itself. /10/ On the other hand, if the right in question can be vindicated by the reversal of an adverse judgment, or if prejudice is a component of the showing necessary to establish a violation of the right, /11/ a party must await the entry of a final judgment before seeking appellate review of the district court's order. An order is not immediately appealable merely because all the facts necessary to appellate review have been fully developed, /12/ because an immediate appeal would avoid a substantial burden on a party, /13/ because a trial court's ruling adjudicates important questions in the case, /14/ or because that ruling may be erroneous. /15/ Permitting an immediate appeal on such grounds would allow the collateral order exception to swallow the final judgment rule, thereby defeating the beneficial purposes served by the rule. See Richardson-Merrell, slip op. 11-12. The Court's decisions therefore make clear that the collateral order doctrine is a narrow exception to the final judgment rule and is applicable to only a small class of pre-judgment orders. Id. at 6. B. The District Court's Order, However Characterized, Does Not Qualify As An Appealable Collateral Order The First and Second Circuits have correctly held that district court orders of precisely the type at issue in this case -- orders allowing a would-be intervenor to become a party to the suit, but restricting his opportunity to participate in the case -- are not immediately appealable under the collateral order doctrine. Kartell v. Blue Shield of Massachusetts, Inc., 687 F.2d 543, 548-550 (1st Cir. 1982); Shore v. Parklane Hosiery Co., 606 F.2d 354, 356-357 (2d Cir. 1979); see also Wheeler v. American Home Products Corp., 582 F.2d 891, 896-897 (5th Cir. 1977). As those courts reasoned, since the intervenor has the right to appeal from an adverse final judgment, he can obtain effective review at that time regarding the district court's ruling on his motion to intervene and the limitations imposed on his participation by the district court. See Shore, 606 F.2d at 357; Kartell, 687 F.2d at 549-551. In this case, the court of appeals never disagreed with the First and Second Circuits that interlocutory review of such trial court orders is ill-advised. In fact, in its initial opinion in this case the Ninth Circuit followed the decisions in Kartell and Shore and held that the district court's February 17, 1984, order was not immediately appealable (Pet. App. A24). Although the Ninth Circuit reversed its field on rehearing, in so doing the court simply held (id. at A26) that it was bound by its earlier decision in California v. Block, 690 F.2d 753 (9th Cir. 1982), a case that was factually similar to this one. Block, however, stated only (690 F.2d at 776) that the denial of a petition to intervene as of right is immediately appealable; the court did not explain why such an order is appealable when the applicant was granted leave to intervene. /16/ The final opinion of the court of appeals in the present case merely reiterated its earlier conclusion that California v. Block, supra, was controlling (Supp. Pet. App. A10-A11). In sum, both here and in Block the court appeals has failed to offer any reason why a party to a lawsuit may immediately appeal a district court order denying the party's petition to intervene as of right and imposing conditions on its participation as a permissive intervenor. For the reasons given below, the district court's order in this case clearly does not satisfy the requirements necessary to qualify as an appealable collateral order. First, the reasons for allowing immediate appeal from the denial of a claimed right to intervene do not apply when a would-be intervenor has been allowed to enter the case. Second, the fact that the district court imposed conditions on respondents' opportunity to participate as a party does not alter this result. Respondents are in the same position as any other party who has had one or more claims dismissed or who has been denied the right to engage in unlimited discovery. Such claims are not immediately appealable. Third, respondents' attempts to defend the court of appeals' ruling ignore the fact that respondents can challenge the district court's rulings on appeal from the entry of a final judgment. 1. It is well-established that a district court order denying a motion to intervene as of right that excludes the petitioner from the case is immediately appealable. See Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., 331 U.S. 519 (1947). /17/ As the Court there explained, an applicant is adversely affected by the denial of an intervention motion "where a statute or the practical necessities grant the applicant an absolute right to intervene," because there is "no other way in which he can better assert the particular interest which warrants intervention" than by participating in the case (331 U.S. at 524). Moreover, that type of order "has the degree of definitiveness which supports an appeal," since the petitioner "cannot appeal from any subsequent order or judgment in the proceeding unless he does intervene" and becomes a party to the case (ibid.). As far as that party is concerned, then "the lawsuit is all over" (Dickinson v. Petroleum Conversion Corp., 338 U.S. 507, 513 (1950)). Accordingly, a district court order denying a petition to intervene as of right and wholly excluding a would-be intervenor from the suit is a classic example of an appealable collateral order. /18/ By contrast, this lawsuit is certainly not "all over" for respondents, even though their application to intervene as of right was denied, because they have been permitted to intervene. Like any other party, respondents will have the opportunity to appeal from an adverse final judgment entered by the district court. See, e.g., Maine v. Taylor, No. 85-62 (June 23, 1986), slip op. 5; Diamond v. Charles, No. 84-1379 (Apr. 30, 1986), slip op. 13; Bryant v. Yellen, 447 U.S. 352, 368 (1980); SEC v. United States Realty & Improvement Co., 310 U.S. 434, 460-461 (1940). /19/ For that reason, it is immaterial that the district court also denied respondents the right to intervene. That aspect of the district court's intervention order by itself does not hamper respondents' ability to protect their interests in this litigation or prevent them from seeking reversal of an adverse final judgment. Accordingly, the reasons given by this Court in Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., supra, for allowing an immediate appeal of a district court order denying a would-be intervenor's application to intervene as of right and excluding him from the suit have no relevance to this case. Instead, the applicable rule is that a district court order allowing an applicant to intervene is not subject to interlocutory appellate review. See, e.g., Brown, v. New Orleans Clerks Union Local 1497, 590 F.2d 161, 164 (5th Cir. 1979); In re 1975-2 Grand Jury Investigation of Associated Milk Producers, 566 F.2d 1293, 1301 (5th Cir.), cert. denied, 437 U.S. 905 (1978); EEOC v. AT & T, 506 F.2d 735, 742 (3d Cir. 1974); Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir. 1974): Roach v. Churchman, 457 F.2d 1101, 1105 (8th Cir. 1982); Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d 186, 188 (2d Cir. 1970); 3B J. Moore & J. Kennedy, Moore's Federal Practice Paragraph 24.15, at 24-163 (2d ed. 1985 & Supp. 1985-1986); 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil Section 1923, at 626 (1972). /20/ The fact that the district court imposed conditions on respondents' participation in this case as permissive intervenors does not transform the district court's ruling into an appealable "final decision." See Shore, 606 F.2d at 357; Kartell, 687 F.2d at 549-551. The fundamental purpose of Fed. R. Civ. P. 24 is to empower a person to protect his interests by entering into an on-going civil suit. /21/ Nonetheless, it is well settled that a district court may impose conditions on a permissive intervenor's participation in a suit, and it is also generally recognized that a district court may also place reasonable conditions on the role played by an intervenor as of right. See Ross v. Bernhard 396 U.S. 531, 541 n.15 (1970) (recognizing this practice); cf. Arizona v. California, 460 U.S. 605, 615 (1983); Trbovich v. United Mine Workers, 404 U.S. 528, 536-537 (1972). /22/ The Advisory Committee Notes to the 1966 Amendment to Rule 24 expressly approve this practice, stating that intervention as of right may be "subject to appropriate conditions or restrictions responsive among other things to the requirements of efficient conduct of the proceedings" (Fed. R. Civ. P. 24 U.S.C. App. at 567). See Shore, 606 F.2d at 356 (Advisory Committee's comment that conditions may be imposed on intervenors "was not an innovative suggestion but was instead the recognition of a well-established practice"). Because Rule 24 thus contemplates that reasonable conditions may be imposed on an intervenor's participation in a given case, a district court does not exclude an intervenor from a suit simply by exercising its authority to impose such conditions. Environmental suits like this one are no exception to that rule. Suits involving sites used by multiple waste generators can rapidly approach monumental proportions. Imposing conditions on the participation of intervenors, therefore, will often be the only feasible way to prevent already-complex and burdensome litigation from becoming virtually unmanageable. /23/ Here, for example, the district court gave precisely that reason for limiting the claims that respondents could raise (see Pet. App. A19; see also id. at A20). Imposing such restrictions can also be necessary to enable the federal government to remedy the environmental damage resulting from by a hazardous waste disposal site without the delay caused by a jury trial on an intervenor's damages claims. See Beacon Theatres, Inc. v. Westover, 359 U.S. 500, 508-511 (1959) (legal issues as to which a party has a right to a jury trial should be tried before equitable issues are resolved by the court). Indeed, the House of Representatives recognized this need in its version of the legislation providing for the reauthorization of and amendments to CERCLA, the Superfund Amendments of 1985, 131 Cong. Rec. H11619 (daily ed. Dec. 10, 1985) (H.R. 2005, 99th Cong., 1st Sess. (1985)). The report on the House's proposed amendment to CERCLA states that any person may intervene as of right when he claims "a direct public health or environmental interest in the subject of a judicial action," but "the intervenor shall only be able to raise issues relating to the selected remedy" (H.R. Rep. 99-253, 99th Cong., 1st Sess. Pt. 3, at 24 (1985) (discussing Section 113(i) of the House bill)). /24/ In sum, there are important reasons why appropriate conditions should be imposed on intervenors in complex environmental suits like this one, and there is no reason to treat suits of this type differently from other types of complex civil litigation for purposes of determining whether a district court order imposing conditions on an intervenor's participation is immediately appealable. Moreover, once an intervenor becomes a party to a lawsuit he gains the right to appeal from a final judgment, regardless of whether his application to intervene as of right has been denied and despite any conditions placed on his participation in the proceedings in district court. He therefore has no need to take an interlocutory appeal. If the district court does not impose any restrictions on his participation in the case, the question whether he had the right to intervene effectively becomes moot. If, on the other hand, the court does impose restrictions, a permissive intervenor may challenge the district court's denial of its petition to intervene as of right (if it is still relevant), as well as any conditions imposed on its participation in the case, following the entry of a final judgment. In either case, then, the district court's denial of an applicant's petition to intervene as of right is of no moment; only the conditions placed on its participation have any significance, and they may be challenged on appeal following the entry of a final judgment. /25/ By itself, therefore, the imposition of conditions on an intervenor does not render an otherwise nonappealable order granting permissive intervention immediately appealable under Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., supra, on the ground that the applicant has been denied the right to intervene. These principles control this case. Here, the court of appeals found that respondents had erroneously been denied the right to intervene and held that respondents did not forfeit this right by participating as permissive intervenors (Supp. Pet. App. A13-A20). Although the court of appeals suggested that the conditions imposed by the district court on respondents' participation as permissive intervenors were burdensome (id. at A11 n.4), the court of appeals expressly left undecided the question whether the district court on remand could reimpose those conditions on respondents as intervenors as of right (Pet. App. A2). Hence, the court of appeals plainly did not believe that the reimposition of these conditions on respondents would amount to a denial of the right to intervene (and it is difficult to see what was accomplished by the court's allowance of a disruptive interlocutory appeal). 2. We submit that an appropriate guiding principle for cases of this type is that once an applicant to intervene becomes a party to the case, he must comply with the same rules governing appellate review of district court orders that apply to the original parties to the case. Put another way, the fact that respondents intervened in this suit does not allow them to obtain interlocutory appellate review of district court orders that is unavailable to any of the other parties to the case. Otherwise, respondents would enjoy a status superior to the one held by the original parties. Nothing in Rule 24, however, supports such an anomalous result; the purpose of the Rule is to allow a person to enter an ongoing lawsuit, not to provide him with privileges unavailable to the original parties to the dispute. This analysis requires that the court of appeals' judgment be set aside. Limited permissive intervenors, such as respondents, are in no different position from that of any other party who has had a claim dismissed or who has been limited in the scope of discovery that it may undertake (or in the evidence that it may introduce). Orders of that type may not be immediately appealed. See, e.g., Fed. R. Civ. P. 54(b); Curtiss-Wright Corp. v. General Elec. Co., 446 U.S. 1, 7-10 (1980) (Rule 54(b)); Douglas Oil Co. v. Petrol Stops Northwest, 441 U.S. 211, 232 (1979) (Rehnquist, J., concurring) (discovery orders are not immediately appealable, citing Cobbledick v. United States, supra); Sears, Roebuck & Co. v. Mackey, 351 U.S. 427 (1956) (Rule 54(b)); 15 C. Wright, A. Miller & E. Cooper, Federal Practice and Procedure: Civil Section 2653, at 25-26, 31 (2d ed. 1983). /26/ The rule should be no different for an intervenor. In all these situations, the need to await the entry of a final judgment entails the risk that all or part of the case on the merits will have to be retried if the district court's ruling is reversed on appeal. But that possible burden is simply the normal consequence of the generally beneficial practice of delaying appellate review of interlocutory district court orders until the entry of a final judgment. And, as we have earlier explained (pages 12-17), the overall and historic policy underlying our appealability jurisprudence is that the disadvantages of disrupting trial proceedings with interlocutory review generally outweighs the occasional burden of errors requiring retrial. 3. Respondents offer two arguments in defense of the court of appeals' ruling; neither is persuasive. a. Respondents contend (Br. in Opp. 32-33 n.14) that there is a substantial interest in a speedy and complete cleanup of the Stringfellow waste disposal site and that, as a practical matter, the relief granted by the district court in this lawsuit will be the only remedy for this particular hazardous waste site. Thus, respondents argue that it is necessary for them to participate in the suit at this time and that, to do so, they need an immediate appellate resolution of the validity of the district court's intervention order. That argument is flawed in several respects. /27/ First, respondents are parties to this suit and can participate in its remedial stage (except for the cost recovery aspect) under the district court's intervention order, which allows them to litigate the same claims that were asserted by the government plaintiffs. If respondents believe that the remedies required by the district court are inadequate, respondents can seek relief from that judgment in the court of appeals, whether in the form of alternative or additional remedies or a new trial. Indeed, respondents will be able to press their claims for relief on appeal even if the original parties to this suit ultimately settle their claims and agree to the entry of a consent decree. See Local 93, International Ass'n of Firefighters v. City of Cleveland, No. 84-1999 (July 2, 1986), slip op. 26-27). Accordingly, there is no merit to respondents' claim that the district court's order unfairly prevents them from being able to protect their interests. Second, this Court has made clear that "(a)ppeal rights cannot depend on the facts of a particular case." Carroll v. United States, 354 U.S. 394, 405 (1957). The Court has twice recognized that the factual circumstances that underlie a particular would-be appellant's claim, however "extraordinary" they are alleged to be, are immaterial for the purpose of determining whether a district court order rejecting that claim qualifies under the collateral order doctrine. See MacDonald, 435 U.S. at 857-858 n.6; Carroll, 354 U.S. at 405; cf. Richardson-Merrell, slip op. 14. Under the governing jurisdictional statute, 28 U.S.C. 1291, the courts of appeals have the power to review only "final decisions," a concept that Congress defined "in terms of categories," not individual cases (Carroll, 354 U.S. at 405). Accordingly, whether the district court's intervention order in this case is an appealable "final decision" depends on whether such orders, "in the generality of cases" (ibid.), fit into that well-defined and narrowly-circumscribed category of interlocutory orders adjudicating rights that "can and should be protected by appeal prior to judgment" (Richardson-Merrell, slip op. 12). District Court orders imposing conditions on intervenors fail that test, because the diverse types of conditions that the district courts can impose on an intervenor (see pages 24-26 note 22, supra) prevent a confident prediction that such orders will, "in the generality of cases," satisfy the three components of the Coopers & Lybrand test. There is no reason to believe that such pretrial orders typically will "conclusively determine the disputed question" (437 U.S. at 468) and will involve issues that are "completely separate from the merits of the action" (ibid.; see Richardson-Merrell, slip op. 14). And, clearly, a limited permissive intervenor's contention that he should not be subject to conditions will not "perish" if it is not reviewed prior to the entry of a final judgment (Firestone, 449 U.S. at 377). As a party to the case, a limited permissive intervenor can appeal from an adverse final judgment and can raise his claims at that time. If those claims are well grounded in fact and law, he will be able to obtain relief from the court of appeals in the form of a new trial, which, as this Court has recognized, is normally a "plainly adequate" remedy for a party's claims (id. at 378). Respondents have offered no reason why that remedy will necessarily be futile for this category of orders. The district court's order in this case illustrates that point. That order can be classified in either of two ways: (1) as the imposition of conditions on respondents' intervention, or (2) as the partial dismissal of respondents' claims and as a limitation on its opportunity to engage in discovery and to file motions. Regardless of how that order is classified, it does not satisfy the Coopers & Lybrand test. It is wholly speculative whether that order will prevent respondents from obtaining any item in discovery they may seek or from filing any particular motion, because the district court's order allows respondents to file any discovery request or any motion in which one other party has joined (Pet. App. A20). Similarly, respondents' damages claim will not perish if they are unable to raise their claims on appeal at this stage of the case. Finally, respondents have the opportunity to participate in the remedial aspect of this litigation even under the district court's order. This case therefore persuasively illustrates that district court orders granting limited permissive intervention do not "in the generality of cases" satisfy the Coopers & Lybrand test. b. Respondents also maintain (Br. in Opp. 29-30 n.13) that they should be allowed to seek interlocutory appellate review of the district court's intervention order because that order places them in "the worst of all worlds," since it denied them the right to intervene, but binds them under the judgment entered in this case. That argument is also flawed. Respondents can appeal from the entry of a final judgment if they are dissatisfied with its terms. Moreover, the precise res judicata effect on respondents of any judgment that may be entered in this case cannot be determined at this time. Respondents are also in the same position that they would have occupied if the district court had granted their motion to intervene as of right, but imposed the same conditions upon their participation, a result that the court of appeals did not foreclose (Pet. App. A2). /28/ Finally, the cost to respondents of going forward in the case despite the possibility that another trial may be necessary is no greater than, for example, the cost to litigants whose trial counsel has been disqualified, and it is well settled that such disqualification orders are not immediately appealable. See Richardson-Merrell, Inc. v. Koller, supra; Flanagan v. United States, supra. There is, in sum, no basis for permitting respondents to take an interlocutory appeal, in contravention of the final judgment rule. CONCLUSION The judgment of the court of appeals should be vacated and the case remanded to that court with directions to dismiss the appeal for lack of appellate jurisdiction. /29/ Respectfully submitted. CHARLES FRIED Solicitor General F. HENRY HABICHT II Assistant Attorney General LAWRENCE G. WALLACE Deputy Solicitor General PAUL J. LARKIN, JR. Assistant to the Solicitor General ANNE S. ALMY LAURA E. FROSSARD Attorneys JULY 1986 /1/ E.R. refers to the excerpts of record filed in the court of appeals. /2/ Section 504 of the Clean Water Act (CWA), 33 U.S.C. 1364; Section 1431 of the Safe Drinking Water Act (SDWA), 42 U.S.C. 300i; Section 7003 of the Resource Conservation and Recovery Act of 1976 (RCRA), 42 U.S.C. (& Supp. II) 6973; Section 106(a) of the Comprehensive Environmental Response, Compensation, and Liability Act of 1980 (CERCLA), 42 U.S.C. 9606(a); Cal. Health & Safety Code Section 205 (West 1979); Cal. Civ. Code Sections 3479-3496 (West 1970 & Supp. 1986). /3/ Section 311 of the CWA, 33 U.S.C. (& Supp. II) 1321; Section 107(a) of CERCLA, 42 U.S.C. 9607(a); Cal. Health & Safety Code Sections 25300-25395 (West 1984 & Supp. 1986). /4/ Although the United States and the State of California are also respondents to the petition under Sup. Ct. R. 19.6, we will hereafter refer to Concerned Neighbors in Action and Penny Newman as respondents. /5/ CWA, 33 U.S.C. 1365(b)(1)(B); SDWA, 42 U.S.C. 300j-8(b)(1)(B); and RCRA, 42 U.S.C. (Supp. II) 6972(b)(2). /6/ The tenth, eleventh, and twelfth claims were brought pursuant to the citizen suit provisions of CWA, SDWA, RCRA (33 U.S.C. 1365; 42 U.S.C. 300j; 42 U.S.C. (& Supp. II) 6972) and allege that the defendants and so-called third-party defendants had violated certain regulatory provisions or requirements promulgated under those Acts (E.R. 165-171). The thirteenth and fourtenth claims for relief allege public and private nuisance and apparently claim a cause of action on such a theory against the Air Force under the Federal Torts Claims Act (E.R. 171-175). The fifteenth and sixteenth are apparently claims sounding in state tort law under negligence and strict liability theories (E.R. 175-177). The seventeenth is an action for inverse condemnation against the State of California for taking Penny Newman's property without just compensation. Federal jurisdiction for this claim is alleged under 42 U.S.C. 1983 (E.R. 178). /7/ Petitioners filed a petition for a writ of certiorari from the order of the court of appeals reinstating respondents' appeal. Stringfellow v. Concerned Neighbors in Action, No. 84-999. However, petitioners later withdrew that petition after the court of appeals entered its March 18, 1985, order. /8/ There are a few express statutory exceptions to the final judgment rule. First, 28 U.S.C. (Supp. II) 1292(b) allows interlocutory appeals in civil cases by permission of the district court and the court of appeals, but only when resolution of a controlling question of law may materially advance the ultimate resolution of the litigation. That exception is inapplicable here, because respondents never sought to have the district court's order certified to the court of appeals. Second, in limited circumstances 28 U.S.C. 1292(a)(1) permits an order to be appealed as a denial of injunctive relief. See Carson v. American Brands, Inc., 450 U.S. 79 (1981). In its original opinion in this case, the court of appeals rejected respondents' argument that the district court's order could be appealed on this basis (Pet. App. A25). In its final opinion, the court of appeals did not rely on this exception as the basis for allowing respondents to appeal the district court's order (Supp. Pet. App. A10-A11), and respondents have not sought to defend the court of appeals' decision on this ground (see Br. in Opp. 24-38). Accordingly, 28 U.S.C. 1292(a)(1) is inapplicable here. Finally, the exceptions allowing the government to take an interlocutory appeal in criminal cases (e.g., 18 U.S.C. (Supp. II) 3731) are obviously inapplicable here. /9/ Cohen also required that an appeal of an interlocutory order must "present ( ) a serious and unsettled question." 337 U.S. at 547. See also Nixon v. Fitzgerald, 457 U.S. 731, 742-743 (1982). /10/ E.g., Mitchell v. Forsyth, No. 84-335 (June 19, 1985), slip op. 12-18 (qualified immunity from liability in damages); Nixon v. Fitzgerald, 457 U.S. at 742-743 (absolute immunity from liability in damages); Helstoski v. Meanor, 442 U.S. 500, 506-508 (1979) (immunity from a criminal prosecution under the Speech or Debate Clause); Abney v. United States, 431 U.S. at 659-662 (immunity from a criminal prosecution under the Double Jeopardy Clause). /11/ E.g., Richardson-Merrell, Inc. v. Koller, supra (disqualification of counsel in a civil case); Firestone Tire & Rubber Co. v. Risjord, supra (refusal to disqualify counsel in a civil case); United States v. Hollywood Motor Car Co., supra (refusal to dismiss the indictment in a criminal case on the ground of alleged prosecutorial vindictiveness); United States v. MacDonald, supra (refusal to dismiss an indictment in a criminal case on speedy trial grounds); Cobbledick v. United States, supra (denial of motion to quash subpoena); Cogen v. United States, 278 U.S. 221 (1929) (refusal to suppress evidence in a criminal case). /12/ See, e.g., Richardson-Merrell, Inc. v. Koller, supra (claim of erroneous disqualification of opposing trial counsel in a civil case); Firestone Tire & Rubber Co. v. Risjord, supra (claim of erroneous refusal to disqualify opposing trial counsel in a civil case); United States v. Hollywood Motor Car Co., supra (claim of vindictive prosecution); Abney v. United States, 431 U.S. at 663 (claim that indictment fails to state an offense); Roche v. Evaporated Milk Ass'n, 319 U.S. 21, 29-31 (1943) (claim that indictment should be dismissed for lack of jurisdiction); Heike v. United States, 217 U.S. 423, 430-431 (1910) (claim of statutory immunity from conviction). /13/ See, e.g., Richardson-Merrell, slip op. 10 (order granting disqualification of opposing counsel in a civil case is not immediately appealable despite delay resulting from need to obtain new counsel); United States v. Ryan, 402 U.S. at 532-534 (denial of motion to quash subpoena is not immediately appealable simply because compliance with the subpoena will impose a substantial burden on respondent); Cobbledick, 309 U.S. at 325 ("(b)earing the discomfiture and cost of a prosecution for crime even by an innocent person is one of the painful obligations of citizenship"). /14/ See, e.g., Carroll v. United States, 354 U.S. 394, 406 (1957) ("(m)any interlocutory decisions * * * may be of grave importance to a litigant, yet are not amenable to appeal at the time entered"); Cobbledick, 309 U.S. at 325-326 ("rejection even of a constitutional claim * * * must await * * * conviction before its reconsideration by an appellate tribunal"). /15/ See, e.g., Richardson-Merrell, slip op. 11 ("the possibility that a ruling may be erroneous and may impose additional litigation expense is not sufficient to set aside the finality requirement imposed by Congress"); Firestone, 449 U.S. at 378 (quoting Will v. United States, 389 U.S. 90, 98 n.6 (1967)) ("interlocutory orders are not appealable 'on the mere ground that they may be erroneous'"). /16/ In Block, the district court denied a petition to intervene as of right, but granted permission to intervene. 690 F.2d at 760. On appeal from the entry of a final judgment, the applicant challenged the district court's refusal to allow intervention as of right. The court of appeals held that the applicant's appeal was untimely, on the ground that an order denying intervention as of right is immediately appealable. Id. at 776. In so ruling, the court did not discuss the hybrid nature of the district court's order, and it relied on a prior decision involving a denial of a petition to intervene as of right that wholly excluded the petitioner from participating in the case. See 690 F.2d at 776 (citing County of Fresno v. Andrus, 622 F.2d 436, 438 (9th Cir. 1980)). Block also did not consider the Ninth Circuit's earlier decision in Van Hoomissen v. Xerox Corp., 497 F.2d 180, 181 (9th Cir. 1974), which held that a grant of limited, permissive intervention was not immediately appealable. /17/ See also, e.g., Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U.S. 129, 132-136 (1967) (by implication); Sam Fox Publishing Co. v. United States, 366 U.S. 683, 687-688 (1961); Sutphen Estates, Inc. v. United States, 342 U.S. 19, 20 (1951); 3B J. Moore & J. Kennedy, Moore's Federal Practice Paragraph 24.15, at 24-164 & n.5 (2d ed. 1985 & Supp. 1985-1986) (collecting cases). In accordance with this Court's decision in Brotherhood of R.R. Trainmen, the courts of appeals have uniformly allowed appellate review of district court orders denying a party's motion to intervene as of right that altogether exclude that party from the case. The courts of appeals differ, however, in the procedure they use to resolve such claims. Most circuits treat the denial of a motion to intervene as of right as a final appealable order. See, e.g., Culbreadth v. Dukakis, 630 F.2d 15 (1st Cir. 1980); Ionian Shipping Co. v. British Ins. Co., 426 F.2d 186, 188-189 (2d Cir. 1970); Commonwealth v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied, 426 U.S. 921 (1976); County of Fresno v. Andrus, 622 F.2d at 438; Sellers v. United States, 709 F.2d 1469, 1471 (11th Cir. 1983); United States v. AT & T, 642 F.2d 1285, 1290 (D.C. Cir. 1980). By contrast, the Fifth Circuit treats such orders as final and appealable only if they are erroneous; accordingly, in that circuit, the question whether the district court's order is appealable turns on the merits of a party's intervention claim. See, e.g., Weiser v. White, 505 F.2d 912, 916-917 (5th Cir.), cert. denied, 421 U.S. 993 1975). Although the practice followed by the majority of the circuits is preferable as a construction of 28 U.S.C. 1291 and the collateral order doctrine (see Ionian Shipping Co., 426 F.2d at 188-189; 3B J. Moore & J. Kennedy, supra, Paragraph 24.15, at 24-166 to 24-168; Shapiro, Some Thoughts on Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 720, 740-751 (1968)), there is no practical difference between these alternative approaches. /18/ By contrast, a party ordinarily may not appeal from an order denying permission to intervene, because he will not be "legally bound or prejudiced by any judgment that might be entered in the case," and "(h)e is at liberty to assert and protect his interests in some more appropriate proceeding." Brotherhood of R.R. Trainmen v. Baltimore & O.R.R., 331 U.S. at 524. He therefore may appeal only if the district court abused its discretion. Ibid.; Allen Calculators, Inc. v. National Cash Register Co., 322 U.S. 137, 142 (1944). It has been argued that all denials of permissive intervention should be treated as final and appealable, but reversal should occur only if the district court abused its discretion. See 3B J. Moore & J. Kennedy, supra, Paragraph 24.15, at 24-167 to 24-168; Shapiro, supra, 81 Harv. L. Rev. at 740-751; 7A C. Wright & A. Miller, Federal Practice and Procedure: Civil Sections 1902, 1923, at 467, 627 (1972). In practice, however, the difference between the two approaches is immaterial. /19/ Respondents are therefore wrong in asserting (Br. in Opp. 29-30 n.13) that the district court has nullified their right to intervene. Of course, in order to appeal following the entry of a final judgment, respondents must demonstrate that they have "'a sufficient stake in the outcome of the controversy' to satisfy the constitutional requirement of genuine adversity" (Maine v. Taylor, slip op. 5 (citation omitted)). See also Diamond v. Charles, slip op. 13; Fishgold v. Sullivan Drydock & Repair Co., 328 U.S. 275, 282-283 (1946); Boston Tow Boat Co. v. United States, 321 U.S. 632, 633-634 (1944). The question whether respondents will have standing to appeal from the entry of a final judgment, however, is distinct from the question whether the court of appeals had jurisdiction to consider respondents' appeal at this stage of the proceedings. /20/ The rationale for this rule is two-fold. On the one hand, another party to the suit cannot challenge the district court's order granting intervention, because that party can raise this claim on appeal from a final judgment. On the other hand, the intervening party cannot challenge the district court's ruling insofar as it permitted him to intervene, because a party may not appeal when he does not seek to alter a judgment in his favor. See Deposit Guar. Nat'l Bank v. Roper, 445 U.S. 326, 333 (1980); Public Service Comm'n v. Brashear Freight Lines, 306 U.S. 204, 206 (1939). /21/ See Notes of Advisory Committee on Rules (1966 Amendment), 28 U.S.C. App. at 567; F. James & G. Hazard, Civil Procedure Section 10.19, at 511-512 (1977); 3B J. Moore & J. Kennedy, supra, Paragraph 24.02, at 24-13; 7A C. Wright & A. Miller, supra, Section 1901, at 464. /22/ See Kirkland v. New York State Dep't of Correctional Services, 711 F.2d 1117, 1125-1128 (2d Cir. 1983), cert. denied, 465 U.S. 1005 (1984); Southern v. Plumb Tools, 696 F.2d 1321, 1322 (11th Cir. 1983) ("conditions can be imposed even when a party intervenes as a matter of right under Rule 24(a)(2)"); Van Hoomissen v. Xerox Corp., 497 F.2d at 181-182; Ionian Shipping Co. v. British Law Ins. Co., 426 F.2d at 191-192; 3B J. Moore & J. Kennedy, supra, Paragraph 24.10(4), at 24-130; Shapiro, supra, 81 Harv. L. Rev. at 727-731; 7A C. Wright & A. Miller, supra, Section 1922, at 623-626; see also Shore, 606 F.2d at 356-357 (collecting cases). While there are relatively few published district court decisions on this subject, it appears that, on occasion, district courts have limited or conditioned an intervenor's opportunity to participate in a case, even when intervention was granted as of right, in order, for example, to retain control of litigation that may already be far advanced. E.g., Kirkland v. New York State Dep't of Correctional Services, 711 F.2d at 1125-1128 (upholding restriction on non-class members' participation in case, under Rule 24(b), for the sole purpose of objecting to a proposed settlement); Southern v. Plumb Tools, 696 F.2d at 1322 (upholding limitations on insurer's participation in suit without deciding whether insurer or by the court's discretion, under Rule 24(b)); Van Hoomissen v. Xerox Corp., 497 F.2d at 181-182 (district court has discretion under Rule 24(b) to limit permissive intervention to particular issues); United States v. Massachusetts Bonding & Ins. Co., 303 F.2d 823, 829 (2d Cir.), cert. denied, 371 U.S. 942 (1962) (upholding district court order permitting intervention on condition that intervenor waive right to a jury trial); Spirt v. Teachers Ins. & Annuity Ass'n, 93 F.R.D. 627, 636 (S.D.N.Y. 1982) (permitting EEOC to intervene, but limiting its participation in the case); Benson v. Little Rock Hilton Inn, 87 F.R.D. 447, 449 (E.D. Ark. 1980) (permitting EEOC to intervene, but refusing to allow EEOC to assert classwide claims); Associated Gen. Contractors v. Secretary of Commerce, 459 F. Supp. 766, 772 & n.14 (C.D. Cal. 1978) (granting intervention as of right, but imposing condition that participation be limited to a prospective basis), vacated and remanded on other grounds, 448 U.S. 908 (1980); Hall County Historical Society, Inc. v. Georgia Dep't of Transp., 447 F. Supp. 741, 746 & n.1 (N.D. Ga. 1978) (prospective intervention only allowed under Rule 24(a)); Harris v. General Coach Works, 37 F.R.D. 343, 347-348 (E.D. Mich. 1964) (intervention permitted, but intervenor not allowed to participate at trial); Carroll v. American Federation of Musicians, 33 F.R.D. 353, 354 (S.D.N.Y. 1963) (permitting applicant to intervene under Rule 24(b), but imposing conditions similar to those imposed by the district court in this case); see also Newport News Shipbuilding & Drydock Co. v. Peninsula Shipbuilders' Ass'n, 646 F.2d 117, 122 (4th Cir. 1981); cf. Morgan v. McDonough, 726 F.2d 11, 14 (1st Cir. 1984). /23/ To date, the Environmental Protection Agency has referred 61 cases to the Department of Justice for litigation under CERCLA. One case that has been partially tried illustrates the potential difficulties that a district court can face. United States v. Ottati & Goss, Inc., Civ. No. 80-225-L (D.N.H.), involved only 17 defendants, but the bench trial held in that case consumed 110 trial days from December 1983 to February 1985. Other cases involve a larger number of parties. In United States v. Conservation Chemical Corp., Civ. No. 82-0983-5 (W.D. Mo.), for example, the defendants and third-party defendants now number 294, including small generators, insurance carriers, and government agencies. /24/ As we explained in our brief at the petition stage of the case (at 17-18), separate bills to reauthorize and amend CERCLA have been passed by the Senate and the House. The Superfund Improvement Act of 1985, 131 Cong. Rec. S12184 (daily ed. Sept. 26, 1985) (Senate bill); the Superfund Amendments of 1985, 131 Cong. Rec. H11619 (daily ed. Dec. 10, 1985) (House bill). As of this date, the bills, both renumbered as H.R. 2005, 99th Cong., 1st Sess. (1985), are still pending before a conference committee. /25/ Of course, the imposition of conditions may limit the res judicata effect on the intervenor of any judgment adverse to him and, for that reason (as well as others), may not be an abuse of discretion reversable on appeal. /26/ If the validity of the conditions placed upon an intervenor's participation in a particular case are both crucial to the future conduct of the case and questionable as a matter of law, 28 U.S.C. (Supp. II) 1292(b) provides an appropriate avenue for seeking immediate appellate review of such interlocutory orders. See Coopers & Lybrand, 437 U.S. at 474. In exceptional circumstances, appellate courts may supervise the manner in which district courts control litigation through a writ of mandamus, rather than interlocutory appeal. In the Ninth Circuit, for example, mandamus has been wielded quite usefully under the standards set out in In re Cement Antitrust Litigation, 688 F.2d 1297 (9th Cir. 1982). See, e.g., United States v. United States District Court, 717 F.2d 478, 481 (9th Cir. 1983). /27/ Respondents' reliance (Br. in Opp. 29 n.13) on Gillespie v. United States Steel Corp., 379 U.S. 148 (1964), is misplaced. That case was a Jones Act suit in which the district court dismissed certain wrongful death claims brought by the decedent's mother on her own behalf and all of the claims brought by the mother on behalf of her other children as administratrix of her son's estate. The plaintiff sought to appeal and a writ of mandamus. Without ruling whether appeal or mandamus was appropriate, the court of appeals decided the merits of the appeal (see 321 F.2d 518, 522 (6th Cir. 1963)). This Court upheld the court of appeals' disposition on the peculiar facts of that case. 379 U.S. at 152-154. In Coopers & Lybrand, a unanimous Court limited the ruling in Gillespie to its facts, cautioning that "(i)f Gillespie were extended beyond the unique facts of that case, Section 1291 would be stripped of all significance." 437 U.S. at 477 n.30. /28/ Respondents have not sought review by this Court of the court of appeals' judgment. /29/ See Firestone Tire & Rubber Co. v. Risjord, 449 U.S. at 379-380.