United States Court of Appeals

FOR THE EIGHTH CIRCUIT

___________

No. 96-3915

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Standard Heating and Air *

Conditioning Co.; Quality *

Refrigeration, Inc.; Thermex *

Corporation; Advance Energy *

Services, Inc.; Ray N. Welter *

Heating Co., *

Plaintiffs - Appellees, *

v. *

City of Minneapolis; Examination * District Court for the District

Board of Warm Air Heating * of Minnesota

Installers; Examination Board of *

Refrigeration Installers; Board *

of Examiners and Plumbers, *

Defendants - Appellees, *

Minnesota Mechanical Contractors *

Association; Sheet Metal, Air *

Conditioning & Roofing *

Contractors Association; Metro *

Plumbing-Heating-Cooling *

Contractors Association, *

Intervenors Defendants - *

Appellants. *

*

*

* Appeal from the United States

*

*

*

___________

Submitted: November 21, 1997

Filed: February 25, 1998
The Honorable Patrick Conmy, United States District Judge for the District of 1

North Dakota, sitting by designation.

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___________

Before BOWMAN and MURPHY, Circuit Judges, and CONMY, District Judge. 1

___________

MURPHY, Circuit Judge.

Three trade associations appeal from the denial of their motion to

intervene in a lawsuit brought against the City of Minneapolis and several

of its trade licensing boards. Standard Heating and Air Conditioning Co.,

Quality Refrigeration, Inc., Thermex Corp., Advance Energy Services, Inc.,

and Ray N. Walter Heating Co. (the companies) sued the city and its

examining boards for air heating installers, refrigeration installers, and

plumbers to challenge certain ordinances and rules governing

apprenticeship, testing, and licensing. We affirm.

Individuals seeking to enter the heating and cooling, refrigeration,

and plumbing and gas trades in Minneapolis are subject to licensing

standards established by city examination boards. Minneapolis Code §§

277.770, 277.790, 277.1010, 277.1030, 277.1170, 277.1190. Board rules

require that individuals wishing to become journeymen in any of these

trades obtain a certificate of competency and show they meet the required

standards. Minneapolis Code §§ 277.730, 277.990, 277.1470. The standards

mandate, among other things, completion of a four year apprenticeship in

the Minnesota State Voluntary Apprenticeship Program established by

Minnesota Statute, Chapter 178, and passage of competency examinations

administered by the boards. State rules declare that pay rates for

apprentices be based on preexisting pay rates and that journeymen

participants in the apprenticeship programs be paid according to any

applicable collective bargaining agreement, the state prevailing wage, or

existing apprenticeship rates. Minnesota Rules Part 5200.0390.
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The companies are engaged in the installation, repair, and

maintenance of heating, air conditioning, refrigeration, and ventilation

units and employ individuals subject to the requirements and testing of the

boards. The companies sued to enjoin the city and its boards from

enforcing rules which require participation in a state-approved

apprenticeship program and which govern wages and conditions of employment

in such programs. They seek a declaratory judgment that the state

apprenticeship program and other requirements are preempted by the

Employment Retirement Income Security Act of 1994, 29 U.S.C. §§ 1001, et

seq., and exceed the authority granted to the boards by the city. They

also assert various claims under 42 U.S.C. § 1983 arising from the

administration of the rules for competency exams and examination

applications, as well as equal protection claims and violations of state

and federal antitrust law.

The three trade associations sought to intervene in this action in

order to defend the regulations. Their members are businesses of various

sizes which together employ approximately 9,500 to 11,500 workers, a

substantial number of whom work regularly in Minneapolis. They hire

individuals who have completed the challenged apprenticeship program and

who submit to the testing and licensing procedures. The associations claim

the challenged regulations serve vital safety and economic interests and

help maintain high quality work in the affected trades. They argue that

resolution of the case in their absence may impair their ability to protect

their interests so they are entitled to intervene under Fed. R. Civ. P.

24(a). Otherwise they should be permitted to intervene under Rule 24(b)

because their defenses would present common issues of law and fact with

those already in the case. 
The Honorable Jonathan Lebedoff, United States Magistrate Judge for the

2

District of Minnesota.

The Honorable David S. Doty, United States District Judge for the District of 3

Minnesota.

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The motion to intervene was denied by the magistrate judge who ruled 2

that the attempted intervenors did not qualify under either Rule 24(a) or

(b). Since plaintiffs did not seek elimination of the apprenticeship

requirement, they did not implicate a legally cognizable interest of the

intervenors. The safety interests asserted by the associations were the

same as those of the public and were therefore adequately represented by

the defendants, and the intervenors did not allege real concerns about the

testing requirements. Intervenors were also denied permissive intervention

because they had failed to identify a claim or defense different from those

already in the case or to show they had a substantial stake in the issues

raised by the plaintiffs. The associations appealed to the district court3

which affirmed.

On appeal to this court the trade associations raise the same points

again. The companies challenge their standing as well as their right to

intervene. Article III standing is a prerequisite for intervention in a

federal lawsuit, Mausolf v. Babbitt, 85 F.3d 1295, 1300-01 (8th Cir. 1996),

and we review the denial of mandatory intervention de novo, United States

v. Union Elec. Co., 64 F.3d 1152, 1158 (8th Cir. 1995). If a party can

establish standing, it is entitled to intervene when it has made a timely

application and it

claims an interest relating to the property or transaction

which is the subject of the action and the applicant is so

situated that the disposition of the action may as a practical

matter impair or impede the applicant’s ability to protect that

interest, unless the applicant’s interest is adequately

represented by existing parties.

Fed. R. Civ. P. 24(a). As a practical matter, this means that a party

seeking
Counsel indicated at oral argument that the trade associations have been

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participating in ongoing settlement negotiations despite their lack of intervenor status.

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mandatory intervention must establish that it: 

(1) ha[s] a recognized interest in the subject matter of the

litigation that (2) might be impaired by the disposition of the

case and that (3) will not be adequately protected by the

existing parties. 

Mausolf, 85 F.3d at 1299. 

Appellants claim that they have established the injury and causal

connection necessary for Article III standing and the interests required

for Rule 24(a) intervention since they have an economic interest in the

subject matter of the litigation. If participation in apprentice programs

were voluntary, employers like them who hire participating workers would

have an economic disadvantage because employers could pay lower wages to

hire non-participants. Appellants also say their members have invested in

the existing education system which is dependent on the regulations, and

elimination of the regulations would present safety risks on their members’

job sites. Lastly, they claim that the interests they assert may conflict

with those of the city and that they therefore should be able to

participate in settlement negotiations.4

The city and the other defendants have not taken any position on

intervention, but the plaintiff companies contend that in addition to lack

of standing the trade associations have mischaracterized the complaint by

saying it seeks elimination of the apprenticeship requirement and the

testing and licensing regulations. Plaintiffs say they only seek to

prevent participation in a “State Approved Voluntary Apprentice Program”

from being a precondition to take a licensing test for the construction

trades. The companies claim that the associations have identified no

protectable interest in the operation of a mandatory apprentice program,

and that the asserted interests in safe and
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competent work are no different from those of the public, and that the

defendants adequately represent any articulated interest. 

The interests asserted by the associations concerning the

apprenticeship requirement are too speculative to be “direct, substantial

and legally protectable” interests as required by Rule 24(a)(2). Union

Elec. Co., 64 F.3d at 1161 (quoting Alameda Water & Sanitation Dist. v.

Browner, 9 F.3d 88, 90 (10th Cir. 1993)). “An interest that is remote from

the subject matter of the proceeding, or that is contingent upon the

occurrence of a sequence of events before it becomes colorable, will not

satisfy the rule.” Washington Elec. v. Massachusetts Mun. Wholesale Elec.,

922 F.2d 92, 97 (2d Cir. 1990). 

A sequence of events would have to occur for the interests of the

associations to be impacted by a successful challenge to the rules, and the

associations have not made an adequate showing that these events are

likely. Entities accepting bids may be wary of hiring companies with

workers who have not gone through the state apprenticeship program, and a

successful challenge to the rules could cause the city to enact new rules

that would affect labor costs similarly to the current regulations.

Moreover, the associations have presented no evidence of how much the

companies could save by using cheaper labor and by how much they would be

able to underbid association members. These facts are critical to

evaluating the likelihood that the associations’ interests will be

implicated. Although association members may fear the loss of business or

difficulties in recruiting qualified applicants, they have not submitted

evidence to support their fears other than the speculative beliefs of

several association officers. Their general reliance on economic forces

is insufficient to constitute a legally protectable claim. 

The asserted interest in safety on job sites also is insufficient

because the suit does not threaten to eliminate the apprenticeship

requirement completely, and the associations will still remain free to

defend their safety interest by hiring only those
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who have completed a state approved apprenticeship program. The

associations may also appeal to the government for more stringent safety

regulations. See Wade v. Goldschmidt, 673 F.2d 182, 186 (7th Cir. 1982)

(applicants should present economic, safety, and environmental interests

to the government bodies since they and “not the courts, are required by

statute to evaluate and make decisions as to the priority of the various

considerations”).

The associations also contend that the challenge to the

administration of the competency examinations implicates their interest in

not undercutting the effort of members’ employees who will have

unnecessarily complied with the testing requirements, and other interests

not yet apparent due to the vague complaint. The associations, however,

have not presented any affidavits or other evidence of employees it claims

would be adversely affected by changes in test procedures, and this

asserted interest is therefore speculative. Cf. United States v. City of

Chicago, 870 F.2d 1256, 1260 (7th Cir. 1989) (qualified applicants entitled

to intervene in suit involving racially altered test results). Moreover,

the companies’ challenge is only to the administration of the examinations

and not to the defendants’ power to test applicants, and the associations

have not explained how their interests would be impaired by any changes in

administration alone. The associations therefore have failed to identify

any interest in the challenge to test administration. 

Parties who are able to assert an interest in the subject matter of

the litigation still may not intervene if the existing parties adequately

represent their interests. Fed. R. Civ. P. 24(a). Where the interests

asserted fall within the realm of “sovereign interests,” and the government

is a party, a presumption that the government adequately represents the

interests of its citizens arises. See Mausolf, 85 F.3d at 1303;

Environmental Defense Fund, Inc. v. Higginson, 631 F.2d 738, 740 (D.C. Cir.

1979). This presumption will be overcome, however, where the state must

balance the applicants’ “narrower and more parochial interests” that are

“not shared by the general citizenry” against the broad public interest,

and the balance may compromise the
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applicants’ interests. Mille Lacs Band of Chippewa Indians v. Minnesota,

989 F.2d 994, 1001 (8th Cir. 1993); see also Dimond v. District of

Columbia, 792 F.2d 179, 193 (D.C. Cir. 1986). The city shares the

appellants’ interests in safety on job sites and in a regulatory system

that guarantees quality work in the trades. These sovereign interests

raise the presumption of adequate representation and prevent intervention

unless the associations can demonstrate that they have an interest which

cannot be subsumed within the general interest of the citizenry. See id.

The associations claim that if the action results in a termination

of the training and testing requirements they will incur increased costs

from injuries on job sites and that these costs are different from the

costs to the general public and that the presumption of adequate

representation therefore should not apply. These potential costs are

insufficient to overcome presumption that the city adequately represents

the appellants’ interests, however, because costs arising from on the job

injury are the type of costs the government seeks to reduce with its

regulatory system. Furthermore, these increased costs to the associations

present “no possibl[ility of] divergence between their position” and that

of the city because both take the same position in the litigation.

Environmental Defense Fund, 631 F.2d at 740.

The appellants assert that their interest in participating in

potential settlement negotiations concerning the administration of testing

requirements overcomes the presumption of adequate representation. In

order to prevail on these grounds the associations must show that their

position in the negotiations is not the same as that of the defendants, or

that they would represent the asserted interests differently than the city.

See Mille Lacs, 989 F.2d at 1001. Testing administration does not force

the government to reconcile two opposing sets of interests during

settlement. Settlement may result in changes in the way tests are

conducted, but the associations and the city share any interest in fair

testing procedures that ensure competent workers in the trades. Cf.

Mausolf, 85 F.3d 1303-04 (intervenors’ interests were inadequately

represented
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because the government faced the possibility of having to reconcile

competing demands on the use of public land). 

The associations assert that they can overcome the presumption of

adequate representation because the city has not been a very active party

in this case. See Mausolf, 85 F.3d at 1303 (citing 7C Charles A. Wright,

Arthur R. Miller, & Mary Kay Kane, Federal Practice and Procedure § 1909

(2d ed. 1986)). They argue the city has not pursued discovery or attempted

to clarify the plaintiffs’ claims or the relief sought. The city has

responded to the complaint and is actively participating in settlement

negotiations, however, and the associations offered no example of the type

of discovery they might conduct or why it would be superior to the city’s

representation. Furthermore, there is no indication that a failure to take

discovery has rendered the defendants at a disadvantage in the litigation.

This record is not like the situation in Mausolf. See id. at 1303. 

The associations assert in the alternative that they should have been

granted permissive intervention under Rule 24(b)(2) because their claims

raise common questions of law and fact to the defenses of the boards and

the city. The standard of review for denial of permissive intervention is

abuse of discretion. Arrow v. Gambler’s Supply, Inc., 55 F.3d 407, 410

(8th Cir. 1989). A party may be allowed to intervene in an action where

“an applicant’s claim or defense and the main action have a question of law

or fact in common.” Fed. R. Civ. P. 24(b)(2). The magistrate judge

concluded that the economic impact of the regulatory scheme was not at

issue and that the appellants’ proposed answer to the complaint did not

raise any claim or defense that was different from those of the existing

parties. The magistrate judge concluded therefore that the additional

parties would only be a source of repetition and delay. Both the orders

of the magistrate and the district court were based on an accurate

assessment of the law and the facts at issue, and it was not an abuse of

discretion to deny the motion for permissive intervention.
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For the reasons discussed, the interests asserted by the associations

are insufficient to require intervention as of right, and the district

court did not abuse its discretion in denying the motion for permissive

intervention. The order of the district court is affirmed.

A true copy.

Attest:

CLERK, U.S. COURT OF APPEALS, EIGHTH CIRCUIT.