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.