UNPUBLISHED

UNITED STATES COURT OF APPEALS 

FOR THE FOURTH CIRCUIT 

No. 08-1331

JLS, INCORPORATED, 

 Plaintiff - Appellee, 

 v. 

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, 

 Defendant, 

 and 

DUNCAN’S MOTEL, INCORPORATED; WILLIAMS TRANSPORT, 

 Movants, 

 and 

C & H COMPANY; CIMARRON COACH OF VIRGINIA, INCORPORATED; D & 

L LIMOUSINE, INCORPORATED; TAXI LEASING, LIMITED; TAXI 

SERVICE, INCORPORATED, d/b/a Yellow Cab, 

 Movants – Appellants. 

No. 08-1338

JLS, INCORPORATED, 

 Plaintiff - Appellee, 

 v. 

PUBLIC SERVICE COMMISSION OF WEST VIRGINIA, 

 Defendant, 
 and 

C & H COMPANY; CIMARRON COACH OF VIRGINIA, INCORPORATED; D & 

L LIMOUSINE, INCORPORATED; TAXI LEASING, LIMITED; TAXI 

SERVICE, INCORPORATED, d/b/a Yellow Cab, 

 Movants, 

 and 

DUNCAN’S MOTEL, INCORPORATED; WILLIAMS TRANSPORT, 

 

 Movants – Appellants. 

Appeals from the United States District Court for the Southern 

District of West Virginia, at Charleston. Joseph R. Goodwin, 

Chief District Judge. (2:07-cv-00586) 

Argued: January 28, 2009 Decided: March 20, 2009 

Before TRAXLER, DUNCAN, and AGEE, Circuit Judges. 

Reversed and remanded by unpublished per curiam opinion. 

ARGUED: James David Kauffelt, KAUFFELT & KAUFFELT, Charleston, 

West Virginia, for Appellants. Jeremy Kahn, KAHN AND KAHN, 

Washington, D.C., for Appellee. ON BRIEF: Michael W. Carey, S. 

Benjamin Bryant, CAREY, SCOTT, DOUGLAS, P.L.L.C., Charleston, 

West Virginia, for Appellants Williams Transport and Duncan’s 

Motel, Incorporated. Robert R. Rodecker, LAW OFFICES OF ROBERT 

R. RODECKER, Charleston, West Virginia, for Appellee. 

Unpublished opinions are not binding precedent in this circuit. 

2 
PER CURIAM: 

 In this suit, a motor passenger carrier seeks injunctive 

relief and a declaration that its transportation of railroad 

employee train crew members in motor vehicles to and from 

different points along railroad lines constitutes interstate 

transportation even when the moves are wholly within West 

Virginia. Several companies now appeal the denial of their 

motions to intervene as defendants. We reverse and remand. 

I. 

 The plaintiff, JLS, Inc., is a motor passenger carrier 

registered with the Federal Motor Carrier Safety Administration. 

JLS is in the business of transporting railroad crew members in 

motor vehicles to and from different points along railroad 

lines, and JLS holds a federal permit authorizing the making of 

such trips in interstate commerce. 

 Counsel for JLS sent a letter in July 2007 to the Director 

of Transportation of the West Virginia Public Service Commission 

(“PSC”) asserting that its transportation of crew members to and 

from points within West Virginia constituted interstate commerce 

that was subject only to federal regulation. The letter stated 

that JLS planned to proceed on that assumption. Counsel 

subsequently telephoned a PSC staff attorney, who allegedly 

advised counsel that JLS would need a permit from PSC in order 

3 
to transport rail crew members within West Virginia. JLS then 

filed this action on September 19, 2007, against the West 

Virginia Public Service Commission (“PSC”), seeking an order 

from the district court declaring that its proposed activities—

moves wholly within West Virginia—constitute interstate 

transportation and therefore are subject only to federal, not 

state, regulation. The suit also requests an injunction 

prohibiting PSC from attempting to take “any enforcement action” 

regarding such activities. J.A. 24. 

 JLS moved for summary judgment on October 19, one month 

before PSC’s answer was due. In support of the motion, JLS 

filed an affidavit of its president, W. Scott Boyes (“the Boyes 

Affidavit”). Pursuant to local rules, PSC’s response to JLS’s 

summary judgment motion was due on November 2. That date being 

more than two weeks before PSC’s answer was due, the district 

court extended PSC’s deadline for responding to the summary 

judgment motion to December 3. 

 PSC filed its answer on November 19. The next day, C&H 

Company; D&L Limousine, Inc.; Cimarron Coach of Virginia, Inc; 

Taxi Service, Inc., doing business as Yellow Cab; and Taxi 

Leasing, Ltd., all moved to intervene. Two more companies, 

Williams Transport and Duncan’s Motel, Inc., later filed a 

separate motion to intervene one month later. We will refer to 

all seven companies collectively as “Movants.” 

4 
 Movants represent that they are engaged in activities 

similar to JLS, including wholly intrastate transportation of 

passengers, and that they hold intrastate authority granted by 

PSC. Each alleges that it is entitled to intervene as a matter 

of right because it has an interest in the transaction that is 

the subject of the action, PSC cannot adequately represent its 

interest, and denial of its intervention request may impair or 

impede its ability to protect its interest. 

 The interest that Movants claim is an economic one. They 

maintain that if JLS obtains the relief it is seeking, JLS and 

other similarly situated companies will not be subject to PSC 

rules and requirements and will therefore be better able to 

compete for railroad crew transportation business within West 

Virginia. Each Movant asserts that the intrastate 

transportation of railroad crews represents a significant part 

of their total business. They further represent that their 

knowledge of the railroad crew transportation business exceeds 

PSC’s and that no one from PSC has ever visited them or inquired 

about how such crews are transported. They assert that PSC 

could not adequately represent and defend their interests in 

this suit because of PSC’s lack of knowledge and because the 

Movants’ revenue and interest in the continued employment of its 

workers gives them a much greater incentive to litigate the suit 

vigorously. 

5 
 On November 29, the original five Movants filed a motion 

requesting that the deadline for responding to JLS’s summary 

judgment motion be moved to after the completion of discovery 

(“the Motion to Enlarge Time”). The motion alternatively sought 

denial of the summary judgment motion without prejudice pending 

discovery or denial of summary judgment on the merits. Movants’ 

memorandum in support of the motion cited specific conflicts 

between their affidavits and the Boyes Affidavit on several 

material points and argued that discovery was needed on these 

points. Then, on December 3, PSC filed its response to JLS’s 

summary judgment motion. PSC did not file any affidavit 

contradicting any fact alleged by JLS or an affidavit stating 

that further discovery was needed. Instead, it relied on two of 

the affidavits Movants had filed. PSC and the five original 

Movants thereafter filed separate motions to dismiss with 

supporting memoranda. 

 On February 11, the district court denied all seven 

Movants’ motions to intervene and denied as moot the original 

Movants’ other outstanding motions. The court ruled that even 

if the Movants will face greater competition for rail crew 

transportation business if JLS obtains the relief it seeks, 

their interest in avoiding such competition is not sufficiently 

direct to justify intervention as a matter of right. The 

district court also ruled that because PSC apparently shared the 

6 
Movants’ ultimate goal of characterizing JLS’s action as 

intrastate and supporting PSC’s jurisdiction, a presumption 

arose that their interests were adequately represented, so that 

Movants were required to show “adversity of interest, collusion, 

or nonfeasance.” J.A. 350 (internal quotation marks omitted). 

The court stated that Movants had not alleged collusion or 

nonfeasance, and because the court had “already determined that 

[Movants] do not possess an adequate interest, any effort to 

determine whether [Movants] have demonstrated interests that are 

adverse would be academic.” J.A. 350. The court further 

concluded that the superiority of Movants’ knowledge about rail 

crew transportation would be immaterial to the success of JLS’s 

suit. 

II. 

 Movants argue that the district court abused its discretion 

in denying their motions to intervene. See Virginia v. 

Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th Cir. 1976) 

(stating standard of review). We agree. 

 Rule 24(a)(2), pertaining to intervention as a matter of 

right, provides that 

[o]n timely motion, the court must permit anyone to 

intervene who . . . 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. 

7 
Rule 24 does not specify what type of interest a party must have 

to intervene as a matter of right, but the Supreme Court has 

recognized that “‘[w]hat is obviously meant . . . is a 

significantly protectable interest.’” Teague v. Bakker, 931 

F.2d 259, 261 (4th Cir. 1991) (quoting Donaldson v. United 

States, 400 U.S. 517, 531 (1971)). When the party on whose side 

a movant seeks to intervene is pursuing the same result that the 

movant is urging, a presumption arises that the movant’s 

interest is adequately represented, so that the movant must show 

“adversity of interest, collusion, or nonfeasance.” 

Westinghouse Elec. Corp., 542 F.2d at 216. However, the movant 

need not show that the representation by existing parties will 

definitely be inadequate in this regard. See Trbovich v. UMWA, 

404 U.S. 528, 538 n.10 (1972). Rather, he need only demonstrate 

“that representation of his interest ‘may be’ inadequate.” Id. 

For this reason, the Supreme Court has described the applicant’s 

burden on this matter as “‘minimal.’” Teague, 931 F.2d at 262 

(quoting Trbovich, 404 U.S. at 538 n.10). 

Feller v. Brock, 802 F.2d 722 (4th Cir. 1986), demonstrates 

that Movants’ interest is adequate here. In Feller, this court 

reversed the denial of a request to intervene as defendants made 

by individual apple pickers in a case in which apple growers 

were plaintiffs and the United States Department of Labor 

(“DOL”) was the defendant. The suit concerned the growers’ 

8 
rights to be issued temporary foreign worker certifications on 

the basis of a wage litigated in a previous action. There were 

three groups of pickers seeking to intervene, one of which was 

composed of domestic pickers for West Virginia growers who were 

not plaintiffs in the suit. We held that this group of pickers 

had an interest in the suit sufficient to support intervention 

as a matter of right because the wages of the competing domestic 

workers would be expected to increase to the extent that the 

litigation resulted in foreign workers being unavailable or 

available only at a higher wage. See Feller, 802 F.2d at 730. 

 Here, the interest that Movants seek to protect is very 

similar to that in Feller. Although Movants have no property 

rights at stake, the result of this suit will determine the 

level of competition that Movants will have, and hence, the 

amount of income they can expect to earn. All Movants derive 

substantial revenue from transporting railroad crews under their 

PSC authority. If JLS is awarded the relief it seeks, Movants 

would face competition from an entity—perhaps multiple entities 

in the future—that does not have to do what they have done—

obtain authority from PSC—and which is not subject to PSC’s 

orders, rules, and regulations. In contrast, according to JLS 

itself, the hurdles that it will face if it is subject to PSC’s 

authority would be enormous; indeed, it would be “virtually 

impossible for JLS to obtain PSC intrastate authority to provide 

9 
rail-crew service.” J.A. 38. Seeing no rationale for 

distinguishing Feller, we conclude that Movants’ interest is 

adequate as a matter of law. See also Utahns for Better Transp. 

v. United States Dep’t of Transp., 295 F.3d 1111, 1115 (10th 

Cir. 2002) (holding that transportation association could 

intervene as a matter of right on the side of the Department of 

Transportation in a suit about a regional transportation plan 

because “[t]he threat of economic injury from the outcome of 

litigation undoubtedly gives a petitioner the requisite 

interest”). 

 JLS does not dispute that this interest would be impaired 

if JLS obtained the relief it sought. We therefore turn to the 

issue of the adequacy of PSC’s representation of Movants’ 

interest. 

 Movants have not alleged a conflict of interest or 

collusion on the part of PSC. Rather, they allege nonfeasance. 

They maintain that because of PSC’s relative lack of knowledge 

of rail crew transportation and because it lacks the motivation 

that Movants have to defeat JLS, PSC has not litigated and will 

not litigate this action sufficiently vigorously and effectively 

to protect their interest. We conclude that Movants clearly 

satisfied their “minimal” burden of showing that PSC’s 

representation of their interests “may be inadequate” in this 

regard. Trbovich, 404 U.S. at 538 n.10 (internal quotation 

10 
marks omitted); cf. Teague, 931 F.2d at 262 (holding that 

district court erred in finding adequate representation when 

would-be intervenors’ superior financial resources created “a 

significant chance that they might be [more] vigorous” in their 

defense of the action than the named defendants). 

 Initially, we note that even when a governmental agency’s 

interests appear aligned with those of a particular private 

group at a particular moment in time, “the government’s position 

is defined by the public interest, [not simply] the interests of 

a particular group of citizens.” Feller, 802 F.2d at 730; see

In re Sierra Club, 945 F.2d 776, 780 (4th Cir. 1991). Movants 

point out that if Movants’ intervention is denied, PSC could 

settle this case in a manner that could harm Movants’ interests. 

 Moreover, in this case, Movants have leveled more effective 

challenges than has PSC to the facts JLS has conceded are 

material to its case. For example, JLS has represented that it 

is seeking to enter into contracts to provide rail crew 

transportation to Norfolk Southern and CSX Railroads in West 

Virginia. JLS concedes that its assertion that “NS and CSX 

trains move between points in different states” is a fact 

material to its case. J.A. 215-A. However, Movant Yellow Cab’s 

Jamie Marlowe counters in his affidavit that, in his experience, 

“entirely intrastate train moves are not rare, but are common, 

and may be a majority of those conducted by” Yellow Cab. J.A. 

11 
154. He also states that about 75% of railroad crew trips 

conducted by Yellow Cab were transportation of local crews, 

meaning a trip beginning at a train station or motel in West 

Virginia and ending at a train in West Virginia, or the reverse, 

without leaving the state. This is supported by several other 

of Movants’ affidavits. 

 JLS also concedes that it is material that Norfolk Southern 

and CSX “won’t enter into contract[s] with JLS if JLS can’t 

provide complete service, including transportation within West 

Virginia.” J.A. 215A. Movants have argued that the Boyes 

Affidavit is not sufficient by itself to establish the positions 

of these two railroad companies and urge that further discovery 

is needed to establish that point. They also challenge JLS’s 

assumption that JLS could not provide complete service to these 

railroads without obtaining the relief it seeks in this case. 

Several Movants’ affidavits stated that there was at least one 

company that provided rail crew transportation to and from 

points within West Virginia without having received operating 

authority from PSC. Movants further allege that a few days 

prior to the district court’s opinion one Movant received a 

proposed contract from Norfolk Southern explicitly allowing for 

the subcontracting of transportation to other entities, 

suggesting that JLS could subcontract the transportation duties 

at issue in this case. These factual challenges support 

12 
Movants’ claims that their superior knowledge of railroad crew 

transportation and their greater incentive to defeat JLS gives 

them a significant advantage over PSC in their ability to 

litigate this case. 

 Movants have also advanced some significant legal points 

that PSC did not present. For example, in its memorandum 

supporting its summary judgment motion, JLS relied on a decision 

of the Pennsylvania Public Utility Commission (“the PPUC”), In 

re Renzenberger, Inc., 98 Pa. P.U.C. 87 (Feb. 7, 2003), as 

factually “indistinguishable” from the present case. J.A. 113. 

In its responding memorandum, PSC acknowledged JLS’s citation of 

the case but failed to distinguish it. In contrast, in their 

reply to JLS’s opposition to their motion to intervene, the 

original Movants pointed out that the PPUC had substantially 

modified that decision, limiting it to covering crews that “have 

just entered Pennsylvania from another state and are going to 

temporary housing or they will be traveling from temporary 

housing to leave Pennsylvania and travel to another state.” In 

re Renzenberger, Inc., 2003 WL 21263616 (Pa. P.U.C. May 5, 

2003). This modification is especially important in light of 

Movants’ affidavits stating that as many as 75% of all railroad 

trips performed by Movants do not involve crews from out of 

state or do not cross a state line. 

13 
 Furthermore, in their memorandum supporting their motion to 

dismiss, the original Movants cited to Public Service Commission 

of Utah v. Wycoff Co., 344 U.S. 237 (1952), a case not 

identified by PSC. Wycoff concerned facts nearly identical to 

those of the present case. There, the plaintiff sought 

injunctive relief as well as a declaratory judgment against the 

Utah Public Service Commission stating that its transportation 

of motion picture film and newsreels between points within Utah 

constituted interstate, not intrastate, commerce. The Court 

held that the plaintiff could not be entitled to injunctive 

relief as there was “no proof of any threatened or probable act 

of the defendants which might cause the irreparable injury 

essential to equitable relief by injunction.” Id. at 241. As 

for declaratory relief, the Court noted that the Declaratory 

Judgment Act does not confer absolute rights to litigants to 

receive declaratory orders, but rather confers discretion on the 

courts to award such relief. See id. The Court held that, 

under the particular facts before it, declaratory relief should 

not be awarded. See id. at 245. In so ruling, the Court relied 

on the fact that the Utah PSC had not taken any concrete action 

against the declaratory judgment plaintiff. See id. at 245-46. 

The Court noted that characterizing plaintiff’s transportation 

as intrastate or interstate would be premature since, if the 

Utah PSC ever were to undertake regulation of the plaintiff, the 

14 
relevant facts might have changed by that time. See id. at 246. 

The Court also reasoned that issuing a declaratory judgment 

before the Utah PSC took concrete action would be incompatible 

with a proper federal-state relationship because it would 

essentially preempt the initial right of the state to reduce its 

policies into a concrete order as might happen if that process 

were not short-circuited. See id. at 247. The Court also 

stated that it was “doubtful” that it had federal-question 

jurisdiction since the federal right asserted would only be a 

defense to a threatened action. Id. at 248. The Court chose 

not to decide that jurisdictional issue, however, since it had 

determined that the case should be dismissed on the grounds 

already discussed. See id. at 248-49. 

 JLS contends that Wycoff is of little relevance here 

because it has been overruled to the extent that it suggested 

(in dictum) there was no case or controversy before the Court. 

See Aroostook Band of Micmacs v. Ryan, 404 F.3d 48, 60 (1st Cir. 

2005). Regardless of the jurisdictional import of Wycoff, 

however, Movants’ citation of the case is still clearly a 

significant contribution as it may very well prevent JLS from 

obtaining the relief it seeks. 

 For these reasons, Movants have convincingly shown that 

their litigation of this suit has been, and would be, 

significantly more vigorous and effective than PSC’s. Having 

15 
16 

noted the difficulty for a government entity in adequately 

representing the interests of a private group, see Feller, 802 

F.2d at 730, we conclude that Movants clearly met their 

“minimal” burden of showing that PSC’s representation of their 

interest “may be inadequate.” Trbovich, 404 U.S. at 538 n.10 

(internal quotation marks omitted). We therefore reverse the 

denial of Movants’ motions to intervene. 

III. 

 Movants next argue that the district court erred in denying 

as moot—due to the denial of their motions to intervene—the 

Motion to Enlarge Time. Because we reverse the denial of 

Movants’ motions to intervene, we will allow the district court 

to consider the Motion to Enlarge Time in the first instance on 

remand. 

IV. 

 In sum, we reverse the denial of Movants’ motion to 

intervene and we remand to the district court for further 

proceedings. 

REVERSED AND REMANDED