2011 Decisions

Opinions of the United

States Court of Appeals

for the Third Circuit

4-5-2011

Franklin Benjamin v. PA Dept Pub Welfare

Precedential or Non-Precedential: Non-Precedential

Docket No. 10-1908

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Recommended Citation

"Franklin Benjamin v. PA Dept Pub Welfare" (2011). 2011 Decisions. Paper 1509.

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NOT PRECEDENTIAL

IN THE UNITED STATES COURT OF APPEALS

FOR THE THIRD CIRCUIT

___________________

NO. 10-1908

___________________

FRANKLIN BENJAMIN, by and through his

next friend, Andree Yock; RICHARD GROGG;

FRANK EDGETT, by and through their next

friend, Joyce McCarthy; SYLVIA BALDWIN, by

and through her next friend Shirl Meyers;

ANTHONY BEARD, by and through his next

friend, Nicole Turman, on behalf of themselves

and all others similarly situated

v.

DEPARTMENT OF PUBLIC WELFARE OF THE

COMMONWEALTH OF PENNSYLVANIA;

SECRETARY OF PUBLIC WELFARE OF THE

COMMONWEALTH OF PENNSYLVANIA

CRAIG SPRINGSTEAD, by and through his

father and guardian, Bertin Springstead;

MARIA MEO, by and through her mother and

guardian, Grace Meo; DANIEL BASTEK, by and

through his father and guardian, John Bastek;

MICHAEL STORM, by and through his

guardian, Polly Spare; BETH ANN LAMBO, by

and through her father and guardian, Joseph

Lambo; RICHARD CLARKE, by and through his

father and guardian, Leonaed Clarke; RICHARD

KOHLER, by and through his sister and

guardian, Sara Fuller; MARIA KASHATUS, by

and through her father and guardian, Thomas Kashatus;

WILSON SHEPPARD, by and through his brother

and next friend, Alfred Sheppard,

Appellants

(Pursuant to Fed. R. App. P. 12(a))

_________________
2

On Appeal from the United States District Court

For the Middle District of Pennsylvania

(D.C. Civil No. 1-09-cv-01182)

District Judge: Hon. John E. Jones, III

__________________

Argued February 7, 2011

BEFORE: JORDAN, GREENAWAY, JR.,

and STAPLETON, Circuit Judges

(Opinion Filed: April 5, 2011)

__________________

Owen H. Smith (Argued)

Sidley Austin

787 Seventh Avenue

New York, NY 10019

 and

John E. Riley

Vaira & Riley

1600 Market Street, Suite 2650

Philadelphia, PA 19103

 Attorneys for Appellants

Mark J. Murphy

Robert W. Meek (Argued)

Robin Resnick

Disability Rights Network of PA

1315 Walnut Street, Suite 500

Philadelphia, PA 19107

 and

Stephen F. Gold

1709 Benjamin Franklin Parkway – 2nd Floor

Philadelphia, PA 19103

 Attorneys for Appellees

Lesli C. Esposito (Argued)
3

DLA Piper

1650 Market Street, Suite 4900

Philadelphia, PA 19103

 Attorney for Amicus Curiae 

 Voices of the Retarded, Inc.

Carl A. Solano (Argued)

Schnader Harrison Segal & Lewis

1600 Market Street, Suite 3600

Philadelphia, PA 19103

 Attorney for Amicus Curiae

 Diane Solano

Joseph A. Sullivan

Jeremy Heep

Pepper Hamilton

3000 Two Logan Square

18th and Arch Streets

Philadelphia, PA 19103

 and

Natalie Grill Einsig

Pepper Hamilton

100 Market Street, Suite 200

Harrisburg, PA 17108

 Attorneys for Amicus Curiae

 The Arc of Pennsylvania and

 Vision for Equality, Inc.

______________________

OPINION OF THE COURT

______________________

STAPLETON, Circuit Judge:

Appellants-Intervenors Springstead et al. seek to intervene in this class action 

brought against Defendants Pennsylvania Department of Public Welfare (“DPW”) and 

Secretary of Public Welfare to enforce rights the Plaintiffs-Appellees claim to have 

under Title II of the Americans with Disabilities Act (“ADA”), 42 U.S.C. §§ 12131-
4

12134, and Section 504 of the Rehabilitation Act (“RA”), 29 U.S.C. § 794. We will 

affirm the District Court’s denial of permissive intervention and intervention of right.

I. Background

Olmstead v. L.C. ex rel. Zimring, 527 U.S. 581 (1999), established that it is a 

violation of the ADA, the RA, and their implementing regulations to force 

developmentally disabled patients to reside in institutions when they are able and willing 

to live in a manner more fully integrated into the community. At the same time, 

Olmstead and the regulations make clear that “community based treatment [cannot] be 

imposed on patients who do not desire it.” Id. at 602 (citing 28 C.F.R. § 35.130(e)(1)

(1998) and 28 C.F.R. pt. 35, App. A, p. 450 (1998)).

Plaintiffs-Appellees Benjamin et al. (“Plaintiffs”) are individuals with mental 

retardation who reside in intermediate care facilities for persons with mental retardation 

(“ICFs/MR”) operated by the DPW. They contend that the DPW’s failure to offer 

community services to them and others similarly situated violates the integration 

mandates of the ADA and RA. Plaintiffs sought and secured certification of the 

following class: 

All persons who: (1) currently or in the future will reside in 

one of Pennsylvania’s state-operated intermediate care 

facilities for persons with mental retardation (ICFs/MR); (2) 

could reside in the community with appropriate services and 

supports; and (3) do not or would not oppose community 

placement.

A7.
5

Plaintiffs seek declaratory and injunctive relief. They recognize that “Olmstead

requires that patients eligible and desirous of community placement be discharged into 

community-based programs [only] if placement can be reasonably accommodated, taking 

into account the resources of the state and the needs of other persons in its care.” 

Frederick L. v. Dep’t. of Pub. Welfare, 422 F.3d 151, 156-57 (3d Cir. 2005) (citing 

Olmstead, 527 U.S. at 587). Accordingly, by way of remedy, they seek an injunction 

directing the DPW, inter alia, (1) to maintain a “Planning List that consists of all state 

ICF/MR residents who have been identified as not opposed to discharge to community 

services,” (2) to promptly place “on the Planning List the named Plaintiffs and any other 

state ICF/MR residents identified by the ICF/MR Facility Directors as having 

affirmatively expressed their desire to be discharged to the community,” (3) to question 

“ICF/MR residents and/or their involved family or guardians” at least annually regarding 

their current preference in order to keep the Planning List current, and (4) beginning in 

fiscal year 2011-12, to “develop and implement a viable integration plan that provides 

community services to at least 100 individuals on the Planning List annually for each of 

the first three years” and for at least 75 individuals from that list thereafter until all on the 

list have been discharged. A296-99.

The Springstead Intervenors (“Intervenors”) are residents of Pennsylvania 

ICFs/MR who would decline community placement if it were offered to them. They 

moved to intervene of right and permissively under Federal Rule of Civil Procedure 24. 

Intervenors alleged that they are de facto members of the certified class, that they have 

protectable interests jeopardized by this lawsuit, and that neither Plaintiffs nor the DPW 
6

sufficiently represent their interests. The District Court denied the motion to intervene of 

right or permissively, and Intervenors timely appealed.1

Following the filing of this appeal, the District Court entered summary judgment 

in favor of Plaintiffs on the liability issue. The remedy issue remains before it. 

II. Discussion

We Court review a district court’s denial of permissive intervention and 

intervention of right for abuse of discretion but applies a more stringent standard to 

denials of intervention of right. Brody v. Spang, 957 F.2d 1108, 1115 (3d Cir. 1992). We

will reverse a district court’s determination on a motion to intervene of right if the court 

“applied an improper legal standard or reached a decision that we are confident is 

incorrect.” Id. (internal quotation marks and citation omitted).

A. Intervention of Right

Rule 24 provides:

(a) Intervention of Right. On timely motion, the court must 

permit anyone to intervene who:

(1) is given an unconditional right to intervene by a 

federal statute; or 

(2) claims an interest relating to the property or 

transaction that is the subject of the action, and is so 

situated that disposing of the action may as a practical 

matter impair or impede the movant's ability to protect 

its interest, unless existing parties adequately represent 

that interest. 

 

1

The District Court had jurisdiction to hear claims regarding civil rights deprivations 

under 28 U.S.C. §§ 1331, 1343(a)(3), and 1343 (a)(4). This Court has jurisdiction under 

28 U.S.C. § 1291 over the District Court’s final decision denying Appellants’motion to 

intervene. McClune v. Shamah, 593 F.2d 482, 485 (3d Cir. 1979) (order denying 

intervention is considered final and appealable). 
7

Fed. R. Civ. P. 24(a). 

A petitioner seeking to intervene of right “must establish that: (1) the application 

for intervention is timely; (2) the applicant has a sufficient interest in the litigation; (3) 

the interest may be affected or impaired, as a practical matter, by the disposition of the 

action; and (4) the interest is not adequately represented by an existing party in the 

litigation.” In re Cmty. Bank of N. Va., 418 F.3d 277, 314 (3d Cir. 2005) (quoting Harris 

v. Pernsley, 820 F.2d 592, 596 (3d Cir. 1987)).2 The claimed interest in the litigation 

must be one that “is specific [to those seeking to intervene], is capable of definition, and 

will be directly affected in a substantially concrete fashion by the relief sought.” 

Kleissler v. U.S. Forest Service, 157 F.3d 964, 972 (3d Cir. 1998). “[T]he polestar for 

evaluating a claim for intervention is always whether the proposed intervenor’s interest is 

direct or remote.” Id. 

An intervenor’s interest in the litigation need not be a legal one so long as the 

party “will be practically disadvantaged by the disposition of the action.” Id. at 970 

(quoting 7C CHARLES ALLAN WRIGHT, ARTHUR MILLER & MARY KAY KANE, FEDERAL 

PRACTICE AND PROCEDURE: CIVIL 2D § 1908, at 301 (1986) (“The central purpose of the 

1966 amendment was to allow intervention by those who might be practically 

disadvantaged by the disposition of the action and to repudiate the view, [under the 

former rule], that intervention must be limited to those who would be legally bound as a 

matter of res judicata.”). However, rather than merely showing some impact, “the

 

2

The District Court found that the application to intervene was timely, and this issue has 

not been raised on appeal.
8

applicant must demonstrate that there is a tangible threat to a legally cognizable interest 

to have the right to intervene.” Harris, 820 F.2d at 601 (citations omitted) (court should 

consider any “significant legal effect on the applicant’s interest,” such as “the stare 

decisis effect on the applicant’s rights” and whether “the contractual rights of the 

applicant may be affected by a proposed remedy.”).

Intervenors insist that their interest in remaining in their current institutional 

setting is clearly sufficient to warrant intervention. We agree with the District Court, 

however, that Intervenors’ interest in maintaining their current form of care is not directly 

in jeopardy in this litigation. The current parties have deliberately defined the class and 

the relief sought so that Intervenors’ right to choose institutional treatment would not be 

affected.

The District Court made its intent clear. The class it certified expressly excludes 

all current and future residents of ICFs/MR who oppose, or would at any relevant time in 

the future oppose, community placement.3 It therefore excludes Intervenors, and they 

will not be personally bound by anything that is decided in this litigation. It follows that,

if the DPW should threaten in the future to coerce them into leaving their current 

 

3

The Intervenors are critical of the class definition because they say it requires an inquiry 

into the mental state of class members. Whether that poses a problem for other purposes, 

it does not pose one in the context of the issues before us. It is sufficient for present 

purposes to hold that their current opposition to community placement currently excludes 

them from the class. If they hereafter are persuaded to drop that opposition, they will no 

longer be in a position to represent the interest they seek to defend here.
9

institutions, Intervenors would be free to file their own suit and litigate whether they have 

a legally enforceable right to remain in the institution where they currently reside.

4 

This does not end the matter, however. Intervenors insist that even if they “are not 

current or putative class members, their interest is likely to be affected as a practical 

matter by the outcome of the lawsuit because the relief sought by Plaintiffs is likely to 

result in closure of ICFs/MR.” Appellants’ Br. at 28. Intervenors do not suggest that 

there is a danger that any remedy afforded to Plaintiffs in this action will include a 

requirement that an ICF/MR be closed. Rather, they fear that budget constraints will 

cause the DPW to allocate its resources in a different manner if it is required by this suit 

to satisfy its obligations under the ADA and that this may result in its closing one or more 

ICFs/MR.

While it is, of course, possible that providing additional community placements 

will occasion some reallocation of the limited resources of the DPW, it is not possible to 

determine at this point whether that reallocation will result in the closing of one or more 

ICFs/MR, and we decline to speculate on that matter. It is sufficient to hold that any 

possible impact on Intervenors’ interest in maintaining their current institutional care is 

not the kind of direct impact that gives rise to a right to intervene. In virtually every suit 

successfully prosecuted against a governmental entity, the judgment will occasion some 

reallocation of limited public resources. Every competitor for those limited resources has 

an interest that potentially may be adversely affected by that reallocation. We have found 

 

4 We express no view as to whether they have such a legally enforceable right. We 

assume, without deciding, that they do.
10

no case, however, suggesting that the interest of such a competitor justifies intervention 

in litigation addressing issues in which he or she has no other interest. If such a 

competitor believes that he or she has an enforceable right for the services of the public 

entity, he or she may bring his or her own suit.

Where a party has an interest in property over which the court has taken 

jurisdiction, and the party has an interest in “being heard with respect to the disposition of 

[a particular] fund[,] . . . such an interest is sufficient to support an applicant’s 

intervention as of right.” Mountain Top Condominium Ass’n v. Dave Stabbert Master 

Builder, Inc., 72 F.3d 361, 368 (3d Cir. 1995). Here, the court has not taken control of 

DPW funds and Intervenors do not have a legal right to particular funds. They may have 

a right to certain benefits from the state, but not a right to a particular fund. 

In Harris, we held that a District Attorney lacked the right to intervene in a suit 

seeking a cap on the prison population where the DA argued such a ceiling would limit 

his ability to carry out his duties as a law enforcement officer. 820 F.2d at 601. Because 

the DA did not administer the prison, and the consent decree placing a ceiling on the 

prison population would only tangentially affect his ability to prosecute, we held that he 

had no right to intervene. See Kleissler, 157 U.S. at 969-70. Similarly here, the relief 

sought by Plaintiffs - that the DPW offer a choice of community placement to ICF/MR 

patients who do not oppose such placement - will only tangentially affect the rights of 
11

those who are opposed. Intervenors therefore are not entitled to intervene as their 

interests will not be directly affected by the relief sought. 5 

IV.

Because intervention of right is not available here, the District Court did not abuse 

its discretion in finding that Intervenors are also not entitled to permissive intervention. 

See Brody, 957 F.2d at 124 (“[I]f intervention of right is not available, the same reasoning 

would indicate that it would not be an abuse of discretion to deny permissive 

intervention.”). 

V.

For the foregoing reasons, we will affirm the District Court’s denial of 

Intervenors’ application to intervene permissively and of right.

 

5 Because we conclude that Intervenors lack sufficient interest to intervene, we do not 

address their contention that the DPW is an inadequate representative.