United States District Court, D. Oregon, Portland Division
PAULA LANE, et al., on behalf of themselves and all others similarly situated; and UNITED CEREBRAL PALSY OF OREGON AND SOUTHWEST WASHINGTON, INC., Plaintiffs,
JOHN KITZHABER, Governor of the State of Oregon, et al, Defendants. UNITED STATES OF AMERICA, Plaintiff-Intervenor,
THE STATE OF OREGON, Intervenor-Defendant.
OPINION AND ORDER
JANICE M. STEWART, Magistrate Judge.
Seven individuals with intellectual and developmental disabilities (I/DD) who are being served in sheltered workshops in Oregon have filed a Motion to Intervene (docket #200) as defendants in this case as of right under FRCP 24(a) or permissively under FRCP 24(b) for the limited purposes of decertifying the class, actively participating in any settlement proceedings, or such further relief as they may seek. Plaintiffs and the United States oppose the proposed Intervenors while defendants support them. For the following reasons, the motion is denied.
Plaintiffs are eight individuals in Oregon with I/DD who filed their initial Complaint on January 25, 2012 (docket #1), followed by their First Amended Complaint on May 29, 2012 (docket #42). On behalf of over 2, 300 similarly situated individuals, they allege that the Governor of the State of Oregon and other state officials fail to "provide supported employment services to the named plaintiffs and members of the plaintiff class in order to allow them the opportunity to work in integrated employment settings and to avoid unnecessary segregation in sheltered workshops." First Amended Complaint, ¶ 37. They seek both injunctive and declaratory relief to remedy defendants' ongoing violations of Title II of the ADA, 42 USC §§ 12101 & 12131, et seq, and Section 504 of the Rehabilitation Act of 1973, 29 USC § 794.
On August 6, 2012, this court certified the class defined as "all individuals in Oregon with intellectual or developmental disabilities who are in, or who have been referred to, sheltered workshops" and "who are qualified for supported employment services." Lane v. Kitzhaber, 283 F.R.D. 587, 602 (D Or 2012). The proposed Intervenors are members of the certified class, but believe that persons with I/DD should be allowed to work in an environment that best meets their abilities and choice, either in integrated or sheltered employment.
On May 22, 2013, the United States was allowed to permissively intervene as plaintiffs to also seek injunctive and declaratory relief under the ADA and Rehabilitation Act in order to "ensure the prioritization of integrated employment" and "to provide sufficient supported employment services for individuals with I/DD." Complaint in Intervention (docket #106), ¶ 49.
In April 2013, Governor Kitzhaber issued Executive Order 13-04 ("Executive Order") which mandates the expansion of supported employment services. The Executive Order directs state agencies to improve the delivery of employment services aimed at integrated employment, "including a significant reduction over time of state support of sheltered work and an increased investment in employment services." Dunbar Decl. (docket #208), Ex. 1, pp. 1-2. For example, the Executive Order directs state agencies to: (1) cease funding of vocational assessments in sheltered workshop settings as of July 1, 2014; (2) cease funding of new placements in sheltered workshop settings as of July 1, 2015; (3) provide employment services designed to help at least 2, 000 I/DD individuals choose, get, learn, and keep jobs in integrated settings on a nine-year schedule; (4) pass rule changes that will prohibit local education agencies from contracting for employment services in sheltered workshops; and (5) improve transition services in the schools through several different measures, such as the hiring of specialists to help ensure that students will be prepared to transition to integrated work experiences. Id at 5-6, 11.
On January 17, 2014, defendants filed a status report on the progress of implementing the Executive Order. On April 21, 2014, this motion was filed.
I. Intervention as of Right
An applicant must satisfy four criteria to intervene as of right under FRCP 24(a)(2):
(1) the applicant must timely move to intervene; (2) the applicant must have a significantly protectable interest relating to the property or transaction that is the subject of the action; (3) the applicant must be situated such that the disposition of the action may impair or impede the party's ability to protect that interest; and (4) the applicant's interest must not be adequately represented by existing parties.
Perry v. Proposition 8 Official Proponents, 587 F.3d 947, 950 (9th Cir 2009) (citations omitted).
The applicant bears the burden of proving that all four requirements for intervention are met. United States v. Alisal Water Corp., 370 F.3d 915, 919 (9th Cir 2004) (citation omitted). "In determining whether intervention is appropriate, courts are guided primarily by practical and equitable considerations, and the requirements for intervention are broadly interpreted in favor of intervention." Id (citation omitted). However, a "[f]ailure to satisfy any one of the requirements is fatal to the application, and ...