APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF PENNSYLVANIA (D.C. Civil No. 78-2548)
Before Gibbons, Higginbotham, Circuit Judges, Ziegler, District Judge.*fn*
This case is an appeal from a denial by the district court of the appellant's motion to intervene below and from a denial of class certification. Both the original plaintiffs in this case and the appellant challenged the procedure by which the Commonwealth of Pennsylvania withdraws the operating privileges of licensed drivers with certain disabilities. The district court simultaneously denied the original plaintiffs' motion for class certification and the appellant's motion for intervention, and dismissed the plaintiffs' case. These decisions were based on its conclusion that both the plaintiffs and the intervenor lacked standing. Only the intervenor has appealed from these decisions. Because we believe the district court's denial of intervention cannot be justified on standing grounds, we will reverse and remand for a determination in the district court on whether permissive intervention should have been granted the appellant under Rule 24(b) of the Federal Rules of Civil Procedure.
The underlying controversy in this case involves the constitutionality of the statutory procedures by which the Pennsylvania Department of Transportation, pursuant to Pa.Stat.Ann. Tit. 75 §§ 1517-19; 1550 (Purdon 1969) (hereinafter § 1517-19; 1550), withdraws the operating privileges of licensed drivers on the basis of reports of physical or mental disability.*fn1
Under Pennsylvania law a Medical Advisory Board (the board) composed of government representatives and medical professionals has responsibility for establishing physical and mental standards for the licensing of drivers. § 1517. The standards are, in turn, enforced by the Department of Transportation (the department). The board formulates a list of "disabilities affecting the ability of a person to drive safely." § 1518(a). Physicians authorized to treat these disabilities must report to the department all cases in which they are diagnosed in a person over fifteen years of age. § 1518(b). The department may also supplement this record when it has reason to believe an operator is not qualified by selecting a physician to examine the operator and submit a report. § 1519(a). The operator himself may also choose a physician to perform an examination and submit his findings to the department. Id.
If the department determines on the basis of its review that an operator is not medically competent to drive, it is required to recall his license. It mails the operator a form notice informing him that a physical examination has determined his inability to drive safely and that his license will be recalled.
Up to the point when the initial determination of incompetency is made and the notice of recall is sent, Pennsylvania does not provide for an adversary hearing. Before the notice of recall becomes effective, however, the operator has a right within 30 days of mailing to appeal the recall to the appropriate Pennsylvania trial court having jurisdiction over the appeals. §§ 1519(c), 1550(a).*fn2 The timely filing of this appeal stays the recall until a "final determination of the matter." § 1550(b). The scope of review by the state court is limited statutorily to a determination of "whether the petitioner is in fact the person whose operating privilege is subject to the recall," § 1550(c), though the parties disagree on how this should be interpreted. The appellant claims the review is pro forma and merely allows scrutiny of whether the person whose license has been recalled is in fact the person the medical report identifies as possessing the listed disability.*fn3 The Commonwealth of Pennsylvania contends that in practice the Pennsylvania courts have often reviewed the underlying medical evaluation of incompetency which provides the justification for the initial identification of the operator.*fn4 If the license is ultimately recalled, the suspension continues under this provision "for an indefinite period until satisfactory evidence is presented to the department" of competency. § 1519(c). The language of the statute thus indicates that no hearing need be provided for the operator before the notice of withdrawal is sent, though there is a dispute on whether a meaningful hearing is provided for challenging the basis of the withdrawal after that notice of recall is sent but before it becomes effective.
On June 15, 1978 Joyce McKay received a notice informing her that her driver's license would be recalled effective July 17, 1978 because of a reported addiction to narcotics. On June 30, 1978 Alice Wall also received a form notice notifying her that her drivers license would be indefinitely recalled effective August 2, 1978 because of a reported neuropsychiatric condition. Both McKay and Wall appealed their recall notices to the Court of Common Pleas, thereby staying their recalls. While these appeals were pending, McKay and Wall brought a class action suit in federal court to have the statute declared unconstitutional under the due process clause of the fourteenth amendment. The suit was brought on behalf of all persons who had been or would be subject to recall under Section 1519, and who had not been given a pre-suspension or prompt post-suspension hearing "to ascertain their competence to operate a motor vehicle."
On October 13, 1978, before the district court had ruled on the plaintiffs' motion for class certification, Michael Dougherty moved to intervene into the suit. Dougherty had been notified on August 24, 1978 that his operator's privileges would be recalled because of a neuropsychiatric condition, and, like Wall and McKay, he had stayed suspension of his license by appealing the recall to the Court of Common Pleas. His motion to intervene was based on a claim of intervention of right under Rule 24(a) Fed.R.Civ.P., or, alternatively, permissive intervention under Rule 24(b).
Before the district court ruled on any of these motions, plaintiff Wall's appeal was sustained by agreement. The recall of plaintiff McKay's license, on the other hand, was upheld by the Court of Common Pleas of Chester County, Commonwealth of Pennsylvania v. Joyce Lynn McKay, M.D. No. 169-P (Chester County, 1978), though, according to the parties, she brought an appeal from that decision to the Commonwealth Court. Her driving privileges had still not been suspended as of the date of oral argument in this court.
On December 7, 1978 the district court denied Dougherty's motion to intervene; McKay and Wall's motion to certify the class; and dismissed the plaintiffs' case all on the grounds that McKay, Wall, and Dougherty lacked standing. The court pointed out that McKay, Wall and Dougherty had not as of the day of its decision been deprived of their operating privileges and therefore had not suffered any injury capable of supporting standing. It discounted the fact that McKay's recall had been upheld by the Court of Common Pleas because McKay sought to represent a class of persons who had "received a recall notice without a prior hearing." It concluded that "the suit is not viable in its present posture regardless of the change in McKay's position." McKay v. Heyison, 80 F.R.D. 694, 698 n.7 (E.D.Pa.1978).
McKay and Wall did not appeal the decision of the district court, but the attempted intervenor, Dougherty, filed a timely appeal to this court from the denial of his motion for intervention and the plaintiffs' motion for class certification. Such a denial of a motion for intervention of right is clearly appealable under the law in this circuit and does not depend on the merits of the motion. McClune v. Shamah, 593 F.2d 482, 485 (3d Cir. 1979); Pennsylvania v. Rizzo, 530 F.2d 501, 504 (3d Cir.), cert. denied, 426 U.S. 921, 96 S. Ct. 2628, 49 L. Ed. 2d 375 (1976). We must determine here whether the district court's denial was justified because the intervenor lacked standing, or whether its denial ...