This appeal presented a motion by proposed intervenors, members of the United Mine Workers of America (UMWA), for summary reversal of an order of the District Court denying them leave to intervene as a matter of right1 in a suit brought by the Secretary of Labor against the UMWA2 pursuant to Title III of the Labor-Management Reporting and Disclosure Act of 1959 (LMRDA).3 The UMWA moved to dismiss the appeal on the ground that appellants failed to file a timely notice of appeal,4 and the Secretary has resisted the motion on the merits. We have heretofore denied the motion to dismiss and granted the motion for summary reversal, our order stating that our opinion would follow as soon as the business of the court permitted. We now delineate the reasons for our disposition.

* On the basis of written complaints submitted by members of the UMWA,5 the Secretary of Labor initiated a suit in the District Court on December 16, 1964, seeking under Title III of the LMRDA6 to lift allegedly unlawful trusteeships7 which had been imposed by the UMWA on seven districts since the 1920s and the 1930s. The twenty-two districts of the UMWA constitute the middle level of its three-tiered structure, and seventeen of these are in trusteeship, or what the UMWA terms "provisional" status, that is, they have no popularly elected officers.8 Appellants are members of six of the seven such districts which are the subjects of this litigation.9

Title III of the LMRDA limits the purposes of trusteeships to "correcting corruption or financial malpractice, assuring the performance of collective bargaining agreements or other duties of a bargaining representative, restoring democratic procedures, or otherwise carrying out the legitimate objects of such labor organization."10 A presumption of invalidity attaches to any trusteeship in existence more than eighteen months, and this may be rebutted only by clear and convincing proof that its continuation is necessary for a statutorily allowable objective.11 Title III also provides for a dual enforcement procedure which permits actions either by the Secretary12 or by union members themselves13 to challenge trusteeships as invalid.14 However, once suit has been filed by the Secretary, exclusive jurisdiction over the trusteeship is vested in the district court in which the filing occurs.15

The litigation here has spanned the terms of three Secretaries of Labor and did not come to trial until July, 1971, nearly seven years after its initiation. Following the trial, the District Court, on July 22, 1971, took the case under advisement. Appellants filed their first motion for leave to intervene on January 21, 1972, prior to issuance of its decision.

Appellants based their application for intervention on Trbovich v. United Mine Workers of America,16 decided January 17, 1972, in which the Supreme Court held that Trbovich, an appellant here, could intervene as of right in an action by the Secretary challenging UMWA elections under Title IV of the LMRDA.17 Like the situation here, the election case18 had been tried and was under advisement when the Court ordered the District Court to allow the intervention.

On March 10, 1972, the District Court issued an order in the instant case denying appellants' motion for intervention as untimely. For some unexplained reason, none of the parties received notice of this order,19 and appellants did not become aware of its existence until May 24, when the District Court filed its opinion holding that the trusteeships had been unlawfully maintained. Upon discovering that their application had been denied, appellants filed a new motion to intervene on June 5, along with a request, predicated on Rule 60(b) of the Federal Rules of Civil Procedure, for relief from the March 10 order because of the absence of notice. In the period between the order of March 10 and the filing of the new motion, the District Court had issued its opinion20 and had requested a proposed decree from the Secretary, and an opinion had also issued in the election case, deciding it on the merits.21

On June 20, the District Court denied the second application for intervention on the earlier-stated ground that it was untimely and on the additional ground that the Secretary of Labor adequately represented appellants' interests. On July 18, appellants filed notice of this appeal, and thereafter their motion seeking summary reversal of that order.

The question whether this court has the jurisdiction to entertain this appeal was raised by the UMWA's motion to dismiss. It pointed to the expiration of the jurisdictional period for filing notice of appeal, when measured from the District Court's March 10 order denying appellants' first motion for intervention. But the UMWA failed to deal with the fact, demonstrated by the record, that appellants' notice of appeal specifically identifed as its subject the June 20 order denying their second motion for intervention, and that, as to the latter order, it was filed well within the allotted period.

Rule 4(a) of the Federal Rules of Appellate Procedure requires that a notice of appeal in a civil case be filed within thirty days of the entry of the order appealed from, unless the United States is a party, in which case a notice of appeal may be filed within sixty days of the order.22 Upon a showing of excusable neglect, the District Court may extend the time for filing a notice of appeal for a period not exceeding thirty days from the expiration of the time otherwise prescribed by the rule.23 Such an extension may be granted either before or after the prescribed time period has run.24

In the present case, owing to the apparent failure of the clerk to give them notice,25 appellants did not discover the March 10 order until May 25, after the court had rendered its opinion and requested the Secretary to submit a proposed decree. The sixty-day period designated by Rule 4(a) had already expired at that time,26 and even if appellants had immediately sought a thirty-day extension on grounds of excusable neglect,27 the time for filing their notice of appeal would have terminated on June 8. Appellants did not seek an extension, but chose instead to file a second motion for intervention and alternatively for relief under Civil Rule 60(b) from the March 10 order. The Rule 60(b) relief asked for was an order expunging the March 10 order and reentering it anew with a view to reopening the appeal period.28 This motion was filed on June 5, and denied by the District Court on June 20. On July 18, appellants' notice of appeal from the June 20 order was taken and, for purposes of review of that order, it was timely.

It is well settled that there is no jurisdiction to hear appeals not filed within the time limits set by Rule 4(a).29 It is equally clear that motions filed under Rule 60(b) for relief from a judgment or order do not toll the time for filing a notice of appeal from such judgment or order.30 Nor can Rule 60(b) be used to circumvent time requirements by the simple expedient of vacating a judgment and reinstating it in order to start anew the running of the appeal period.31 The harsh result occurring where, as here, counsel has not received Rule 77(d) notice can only be mitigated by a prompt request for a thirty-day extension under Rule 4(a).32 Counsel then representing appellants made no such request, and as we have seen, a request for relief under Rule 60(b) is not a means of extending the time for appeal.33

In the final analysis, the question of jurisdiction must be resolved by ascertaining whether the June 20 order, from which this appeal was taken, was merely a reinstatement of the court's March 10 ruling, or whether it constituted a new determination by the District Court reached under circumstances materially changed from those existing in March. If the later order was only an attempt to revive the earlier order, it did not start the time for appeal all over again.34 But if, on the other hand, it was in essence a new decision on appellants' motion for intervention, the District Court's June 20 denial is properly before us. It is well settled that in ruling on an application for intervention,35 the court is required to exercise a considerable degree of discretion.36 Moreover, the various factors which guide the exercise of that discretion may change substantially as the litigation progresses.37 Where, as here, a court's ruling has discretionary elements based on circumstances which are subject to alteration, the law recognizes the power and responsibility of the court to reconsider its ruling if a material change in circumstances has in fact occurred.38 We are of the opinion that the District Court's order denying appellants' second application for intervention falls within the ambit of this principle.

On January 21, 1972, appellants sought intervention as of right or, in the alternative, permissive intervention. Their application was denied on March 10, and the only reason given by the court for the denial was untimeliness. On June 5, applicants renewed their motion for intervention.

In the four months which elapsed between the first and second applications, two events occurred which we believe warranted the District Court's reconsideration of the question of intervention. The more important of these was the entry of the District Court's opinion in the instant case on May 24, 1972, holding the trusteeships invalid and requesting the Secretary to file a proposed decree. Plainly this occurrence added new urgency and weight to appellants' application, since it bore out their claim that the trusteeships were unlawful, and without intervention neither they nor other union members would have a voice in fashioning the relief to be afforded in their districts.

The second significant event was the entry of the District Court's opinion on May 1, 1972, in the election case. As we have noted,39 the nature of the remedial measures to be formulated in that case, in which appellant Trbovich is an intervenor, was in great part contingent on the nature of the resolution achieved in the trusteeship litigation. We believe these two events, taken together, substantially changed the context in which appellants last moved for intervention, thereby justifying and indeed requiring the District Court's reconsideration of their application.

The June 20 order denying the second motion adhered to the earlier March 10 ruling that the request was untimely, but it added a second reason for the denial: a finding that the Secretary adequately represented the proposed intervenors' interests. Surely, with the inclusion of that additional reason in the June 20 order, ostensibly in light of the changed circumstances, it cannot be seriously contended that the court merely vacated and reinstated the March 10 ruling. We are satisfied that the June 20 order was not simply an attempt by the court to help appellants overcome the barrier posed by the expired time limit on appealing the March 10 order, but that it constituted a fresh evaluation of the intervention application, well within the discretionary power of the District Court to make, and amenable to review on the merits by this court.40

On the merits, we are called upon to assess appellants' effort to intervene as a matter of right pursuant to Rule 24(a)(2)41 in an action prosecuted by the Secretary against the UMWA under Title III of the LMRDA.42 Here, as in their applications as proposed intervenors in the District Court, appellants argue that their case comes within the standard set by the Supreme Court in Trbovich v. UMWA,43 which granted limited intervention as of right to union members in election suits brought under Title IV of the LMRDA.44 Our analysis of Trbovich leads us to conclude that it controls the case before us. Indeed, in our view, the Title III litigation here presents an even more compelling case for granting intervention to union members than did the Title IV litigation in Trbovich.

The Court began its examination of the issues in Trbovich by observing that Title IV of the LMRDA vests solely in the Secretary the power to bring litigation challenging union elections.45 Title IV makes no express mention of suits by union members, and the Court had previously held that it bars them from initiating such actions.46 Nevertheless, nothing on the face of Title IV sheds any light on the question of intervention,47 and in the absence of guidance from the language of the statute, the Court in Trbovich was required to make a careful examination of its legislative history.48

Contrary to the arguments advanced by the Secretary, the Court concluded that by prohibiting union members from initiating election litigation, Congress sought only to guard against frivolous claims and against lawsuits in forums or at times different from those chosen by the Secretary.49 If intervention would frustrate these twin aims Title IV would prohibit it as well as the initiation of litigation by union members,50 but the Court concluded that intervention would not thwart either of the legislative purposes achieved by limiting election suits to those inaugurated by the Secretary.51

Title III of the LMRDA, like the title which follows it, makes no mention of intervention by union members in litigation seeking to enforce its provisions. But it differs significantly from Title IV in that it permits actions challenging trusteeships to be commenced by union members themselves when the Secretary has brought none himself.52 Thus, the stumbling block to intervention apparently posed by Title IV's vesting of the right to sue exclusively in the Secretary is not present in Title III. On the contrary, the fact that union members themselves may bring trusteeship actions argues strongly that they are not automatically precluded from intervening in such actions when brought by the Secretary. Only if the legislative history of Title III clearly evinced some contrary congressional purpose would the opposite conclusion be warranted.

The reports of the Senate,53 House54 and conference55 committees on the LMRDA say nothing about intervention by union members in trusteeship litigation. The original version of the bill reported out to the Senate56 authorized only the Secretary to initiate suits in federal courts under Title III, although union members could pursue their common law remedies in the state courts.57 By contrast, the House version58 enabled union members as well as the Secretary to bring federal actions challenging trusteeships.59 The dual enforcement procedure in the House bill withstood the conference committee's scrutiny60 and was enacted into law,61 and so it is that Title III litigation may be initiated either by the Secretary or individual union members.62 The only limitation is that once an action has been instituted in a district court by the Secretary, that court has exclusive jurisdiction over the trusteeship, and its final judgment is res judicata.63

Having discovered no evidence reflecting a legislative purpose inimical to intervention by union members in the Secretary's suits, we must move on to a consideration of the requirements of Rule 24(a)(2), especially as they are treated in Trbovich, in order to further evaluate appellants' claim. In the present case, the District Court found the application of appellants as proposed intervenors to be untimely. With all due deference to the court's view on that matter, we must disagree. While timeliness is a prerequisite to any claim for intervention under Rule 24,64 it is settled-particularly where intervention is sought as of right-that the amount of time which has elapsed since the litigation began is not in itself the determinative test of timeliness.65 Rather, the court should also look to the related circumstances, including the purpose for which intervention is sought, the necessity for intervention as a means of preserving the applicant's rights,66 and the improbability of prejudice to those already parties in the case.67

To be sure, appellants' application for intervention was made after the action was tried, and some seven years after it was filed. But the proposed intervenors expressly disavowed any desire to reopen any previously-litigated question, and sought only to participate in the remedial, and if necessary the appellate, phases of the case. This limited goal does not appear to impose any untoward burden on the UMWA, the Secretary or the court.68 Timeliness presents no automatic barrier to intervention in post-judgment proceedings where substantial problems in formulating relief remain to be resolved.69 As we declared in Wolpe v. Poretsky,70 intervention ". . . may be allowed [even] after a final decree where it is necessary to preserve some right which cannot otherwise be protected."71 It can hardly be gainsaid that appellants have rights which could be lost irretrievably were intervention not permitted at this time.

It is clear on the face of appellants' claim that, not only as individuals but also as reformists72 in the trusteed districts involved in this case, their interest in the scope of relief to be afforded and in the specific procedures to be set up for dissolving the invalid trusteeships possesses the substantiality required by Rule 24(a)(2). That interest is heightened by the statutorily-prescribed res judicata effect of any judgment rendered in a trusteeship suit brought by the Secretary.73 For appellants, the litigation is now in its most critical phase since they and other union members in their districts will have to live with whatever remedies the District Court fashions. Moreover, as the opinion in the election case points out, the suffrage rights of union members in these districts are inextricably bound up with the fate of the trusteeships.74 We conclude that on balance of the relevant considerations, the scale weighs heavily in appellants' favor on the issue of timeliness.

But one question, then, remains to be resolved, and that is whether, as the District Court held, appellants' interest in this suit is adequately represented by the Secretary. In approaching this problem, we are guided by the Court's admonition in Trbovich.75 That, for purposes of Rule 24, applicants for intervention need not prove that representation by the Secretary is inadequate but need show merely that it may be; and that the burden of making that showing should be treated as minimal.76 For three reasons, we are of the opinion that appellants have met that standard.

First, we note that this case has consumed more than seven years while three Secretaries of Labor have successively manned the helm. In these days of overburdened court dockets, we would hesitate to say that even the passage of years between complaint and judgment itself bespeaks lax advocacy. But we readily recognize that time is one factor to be considered here, where the districts involved have endured trusteeships for decades. The case at bar suffers by comparison with other litigation brought by union members to liquidate trusteeships which was concluded successfully in far less time.77

Second, appellants contend that the proposed decree which the Secretary has submitted to the District Court will not restore full autonomy to the trusteed districts. As an example, they cite the failure of the Secretary to propose the popular election of members of executive boards in the affected districts. To the extent that this relief falls short of what appellants themselves would reasonably ask, the Secretary's representation of their interest in the remedial phase of the litigation is inadequate.

Finally, as the Supreme Court cogently observed in Trbovich with respect to suits brought by the Secretary under Title IV, the Secretary must also serve here in a dual capacity as a public official and as the union members' lawyer.78 In the words of the Court:

Both functions are important, and they may not always dictate precisely the same approach to the conduct of litigation. Even if the Secretary is performing his duties, broadly conceived, as well as can be expected, the union member may have a valid complaint about the performance of "his lawyer."79

The right of intervention conferred by Rule 24 implements the basic jurisprudential assumption that the interest of justice is best served when all parties with a real stake in a controversy are afforded an opportunity to be heard. We think appellants are entitled to intervene in the Secretary's suit in order to assure that their interest in effective dismantling of the unlawful trusteeships in their districts is safeguarded at this particularly crucial stage of the case. We accordingly hold that appellants must be granted intervention as of right, and our order disposing of this appeal so provides.