Association for Education Fairness v. Montgomery County Board of Education ( 2023 )

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PUBLISHED
UNITED STATES COURT OF APPEALS
FOR THE FOURTH CIRCUIT
No. 23-1068
ASSOCIATION FOR EDUCATION FAIRNESS,
Plaintiff – Appellant,
v.
MONTGOMERY COUNTY BOARD OF EDUCATION; DR. MONIFA B.
MCKNIGHT,
Defendants – Appellees,
and
CASA, INC.; MONTGOMERY COUNTY BRANCH OF THE NAACP; ASIAN
AMERICAN YOUTH LEADERSHIP EMPOWERMENT AND
DEVELOPMENT; MONTGOMERY COUNTY PROGRESSIVE ASIAN
AMERICAN NETWORK
Proposed Intervenors.
On Appeal from the United States District Court for the District of Maryland, at Greenbelt.
Paula Xinis, District Judge. (8:20-cv-02540-PX)
Argued: September 20, 2023 Decided: December 8, 2023
Before RICHARDSON and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit
Judge.
Motion denied without prejudice by published opinion. Judge Heytens wrote the opinion,
in which Judge Richardson and Judge Floyd joined.
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ARGUED: Michael Skocpol, NAACP LEGAL DEFENSE & EDUCATIONAL FUND,
INCORPORATED, Washington, D.C., for Intervenors. Christopher M. Kieser, PACIFIC
LEGAL FOUNDATION, Sacramento, California, for Appellant. Nathaniel A.G. Zelinsky,
HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. ON BRIEF: Joshua P.
Thompson, Erin E. Wilcox, Sacramento, California, Glenn E. Roper, PACIFIC LEGAL
FOUNDATION, Highlands Ranch, Colorado, for Appellant. Jo-Ann Tamila Sagar,
Washington, D.C., Steven F. Barley, HOGAN LOVELLS US LLP, Baltimore, Maryland,
for Appellees. Leslie E. John, Elizabeth V. Wingfield, Kayla R. Martin, Philadelphia,
Pennsylvania, Maraya N. Pratt, BALLARD SPAHR LLP, Baltimore, Maryland; Niyati
Shah, Shalaka Phadnis, ASIAN AMERICANS ADVANCING JUSTICE-AAJC,
Washington, D.C.; Michaele N. Turnage Young, Jin Hee Lee, Washington, D.C., Allison
Scharfstein, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York,
New York; Francisca D. Fajana, LATINOJUSTICE PRLDEF, New York, New York, for
Intervenors.
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TOBY HEYTENS, Circuit Judge:
A coalition of civil rights organizations asks to intervene in an appeal from a district
court judgment granting full relief to the side the organizations seek to join. We deny the
motion without prejudice.
I.
This litigation stems from a school district’s decision to change its process for
selecting students for four magnet schools. In 2020, plaintiff Association for Education
Fairness sued the Montgomery County Board of Education and its superintendent
(collectively, the Board), claiming the Board’s then-new admissions policy
unconstitutionally discriminated against Asian American students. The Board filed two
motions to dismiss, which defended the policy on the merits and argued the case was moot
because the Board had changed its admissions process again since the Association filed
suit. The district court denied those motions, and the Association filed an amended
complaint.
Soon after, “a multi-racial coalition of five organizations that serve thousands of
Asian American, Black, and Latino students and families across Montgomery County”
moved to intervene as defendants. Mot. to Intervene 3, D. Ct. ECF 69. Viewing “the crux
of ” the dispute over intervention as involving “the propriety of intervention if the case
proceed[ed] to discovery,” the district court “defer[red] resolution of ” the organizations’
motion “until after it decide[d] whether” to grant the Board’s forthcoming motion to
dismiss the amended complaint. Letter Order 1, D. Ct. ECF 84. In the meantime, the court
said the organizations could “participate as amici ” by filing “an opening pleading in
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support of dismissing the Amended Complaint, as well as a reply pleading” on the same
schedule as the Board. Id. at 1–2.
The Board filed a third motion to dismiss, and the organizations filed a brief in
support of that motion. The Board argued the challenged policy was subject to (and passed)
rational basis review because the policy was race neutral and the amended complaint did
not plausibly allege it was enacted with a discriminatory purpose. The organizations’ brief
echoed those arguments, but also offered another: that rational basis review applied
because the amended complaint did not plausibly allege the policy had a disparate impact
on Asian American students.
The district court granted the motion to dismiss on two alternative grounds. The
court agreed with the Board that the complaint contained “no facts [that] give rise to the
inference that the” challenged policy was motivated by discriminatory intent.
See Association for Educ. Fairness v. Montgomery Cnty. Bd. of Educ., 617 F. Supp. 3d
358, 368 (D. Md. 2022). The court also accepted the argument—raised only by the
organizations as amici—that the amended complaint likewise failed as a matter of law
because it did “not aver plausibly that the” challenged policy “disparately impacts Asian
American students.” Id. Having dismissed the Association’s complaint, the district court
denied the organizations’ motion to intervene “as moot.” Id. at 373.
After unsuccessfully moving to alter or amend the judgment under Federal Rule of
Civil Procedure 60(b), the Association filed a notice of appeal. All but one of the
organizations have sought leave to intervene in that appeal.
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II.
“No statute or rule provides a general standard to apply in deciding whether
intervention on appeal should be allowed.” Cameron v. EMW Women’s Surgical Ctr.,
P.S.C., 142 S. Ct. 1002, 1010 (2022); see 4th Cir. R. 12(e) (referencing intervention
motions but providing no standard for granting them). Although the Federal Rules of Civil
Procedure contain detailed provisions governing intervention in civil cases in federal
district court, see Fed. R. Civ. P. 24, those rules do not apply in this Court, see Fed. R. Civ.
P. 1; Automobile Workers v. Scofield, 382 U.S. 205, 217 n.10 (1965). Nor have the parties
brought to our attention any statute or rule governing intervention under these
circumstances. Cf. Automobile Workers, 382 U.S. at 216 n.9 (citing statute addressing
intervention in certain agency appeals). For that reason, resolution of the organizations’
motion is committed to our discretion. Accord Cameron, 142 S. Ct. at 1011 (describing a
motion to intervene on appeal as “committed to the discretion of the court before which
intervention is sought”).
That does not mean we lack all guidance. In considering motions to intervene on
appeal, the Supreme Court has told us to consult “the policies underlying intervention in
the district courts.” Cameron, 142 S. Ct. at 1010 (quotation marks omitted). We thus
consider a non-exhaustive list of factors—the timeliness of the organizations’ request, the
interests the organizations seek to represent, the extent to which the existing parties
adequately represent those interests, and the effect on the organizations and the current
parties of granting or denying intervention. See id. at 1010–14.
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To begin, we reject any suggestion the organizations’ efforts to intervene are
untimely or represent an impermissible end-run around a deferential standard of review.
Neither the Association nor the Board suggests there has been undue delay in connection
with the appeal itself. Instead, the existing parties suggest the organizations should have
sought review of the district court’s treatment of their intervention request sooner or in a
different way, and that the organizations’ failure to do so renders the current motion
improper.
We take all involved to agree on two points. First, those seeking to force their way
into lawsuits between others generally must do so while the case is pending before a trial
court rather than waiting to do so on appeal. See, e.g., Associated Builders & Contractors,
Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999); accord Wright & Miller, 7C Fed.
Prac. & Proc. Civ. § 1916 (3d ed. 2023) (“There is considerable reluctance . . . to allow
intervention after the action has gone to judgment . . . [and] even more reason to deny an
application to intervene made while an appeal is pending.”). Second, because a district
court’s decision denying intervention is reviewed only for an abuse of discretion, see
Cawthorn v. Amalfi, 35 F.4th 245, 253 (4th Cir. 2022), appellate courts must police against
attempts to evade that deferential standard by declining to seek review of an adverse district
court decision and then filing a fresh motion to intervene on appeal. See, e.g., Richardson
v. Flores, 979 F.3d 1102, 1105 (5th Cir. 2020); Hutchinson v. Pfeil, 211 F.3d 515, 519
(10th Cir. 2000).
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Neither guardrail is triggered here. The organizations sought intervention in the
district court, and they did not forgo any meaningful opportunity to obtain review of an
adverse district court ruling.
True, a decision denying intervention is “a final judgment that is appealable,”
Bridges v. Department of Md. State Police, 441 F.3d 197, 207 (4th Cir. 2006), and the
organizations never appealed. But the district court’s first order addressing intervention did
not deny the organizations’ motion. Instead, the court deferred resolution of the
intervention question pending its ruling on the Board’s upcoming motion to dismiss the
amended complaint. That decision not to decide was “patently non-final,” In re Wallace &
Gale Co., 72 F.3d 21, 24 (4th Cir. 1995), and the organizations had no way to appeal it.
Nor did the organizations have any reason to appeal the district court’s ultimate
denial of their intervention motion. That decision was, in principle, an appealable order.
See Bridges, 441 F.3d at 207. But it is at least uncertain whether there was anything for the
organizations to appeal at that point. The district court did not deny the organizations’
intervention motion because it was unwarranted under Federal Rule of Civil Procedure 24.
Instead, the court recognized the intervention question had been rendered academic by its
decision to enter a final judgment for the parties on whose side the organizations sought to
intervene. And because the organizations were in no way “aggrieved” by the district court’s
decision to dismiss the Association’s lawsuit, they had no reason to seek appellate review
at that point. Deposit Guar. Nat’l Bank v. Roper, 445 U.S. 326, 333 (1980); accord Wright
& Miller, 15A Fed. Prac. & Proc. Juris. § 3902 (describing the general rule that no appeal
may be taken from a final judgment unless the appealing party “can show an adverse effect
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of the judgment”). Whether the organizations should be granted party status did not arise
again until the Association launched a new proceeding by appealing the district court’s
judgment. We thus reject the argument that the organizations delayed unduly in seeking to
bring the intervention issue before this Court.
We turn to the other factors. No one denies the weight of the legal interests the
organizations seek to protect. See Allen v. Wright, 468 U.S. 737, 756 (1984) (describing a
child’s “diminished ability to receive an education in a racially integrated school” as “not
only judicially cognizable but . . . one of the most serious injuries recognized in our legal
system”). For that reason, our resolution of this motion comes down to this: a prediction
about whether the existing parties will adequately protect the organizations’ interests and
an assessment of the prejudice to those parties and the organizations from granting or
denying intervention. The question is a close one, and our decision rests heavily on the
specific factual situation before us. That said, we deny the organizations’ motion without
prejudice.
The sole question on the merits in this appeal is whether to affirm or reverse the
district court’s decision granting the Board’s motion to dismiss for failure to state a claim.
In this procedural posture, there are no facts in the record nor any chance to add facts—
much less disagree about which facts to add. Cf. Grutter v. Bollinger, 188 F.3d 394, 401
(6th Cir. 1999) (holding district court erred in denying intervention where proposed
intervenors raised questions about what evidence the existing defendants were likely to
present). In addition, because the side on which the organizations seek to intervene won a
complete victory in the district court, there is no prospect of disagreement about what
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bottom-line result to seek on appeal. Cf. Feller v. Brock, 802 F.2d 722, 730 (4th Cir. 1986)
(reversing district court’s refusal to permit intervention as of right when party whose side
intervenors sought to join planned to argue against the intervenors’ position on a contested
issue). Both the organizations and the Board seek the same thing from this Court: a decision
ending in the word “affirmed.” Cf. Virginia v. Westinghouse Elec. Corp., 542 F.2d 214,
216 (4th Cir. 1976) (stating that, even where a proposed intervenor’s “burden of showing
an inadequacy of representation is minimal,” the case for intervention is far weaker where
the proposed intervenor “seeks no relief other than that which [an existing party] seeks for
itself ”).
Of course, there are often multiple roads to a destination, and the organizations’
strongest argument is that—absent intervention—the Board’s litigating choices could place
obstacles along one of those paths. Consider how someone seeking affirmance might argue
this case. It is common ground that the path is far rockier if the challenged admissions
policy is subject to strict scrutiny. Because the policy is facially race neutral, there are at
least two arguments that could be made to avoid that exacting standard: lack of
discriminatory intent and lack of disparate impact. See, e.g., Coalition for TJ v. Fairfax
Cnty. Sch. Bd., 68 F.4th 864, 879, 882 (4th Cir. 2023). When briefing its motions to
dismiss, however, the Board relied solely on lack of discriminatory intent and refrained
from making a disparate impact argument. Despite that, the district court decided the Board
won for both reasons and relied on the organizations’ framing of the second. The
organizations say what happened before is the best predictor of what may happen again,
and that here the Board’s past actions—and its interest in not casting doubt on its own past
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conduct or limiting its future flexibility—suggest the Board cannot be trusted to defend the
district court’s disparate impact holding on appeal.
Without any other developments, making a prediction about whether the Board is
likely to adequately protect the organizations’ interests in this appeal could have required
us to delve deep into the case’s procedural history, as well as principles of appellate review
and procedure. For example, we may have needed to assess: (1) why the Board made no
disparate impact argument in its motion to dismiss the amended complaint; (2) how the
Board framed its response to the Association’s motion to alter or amend the district court’s
judgment; (3) whether and to what extent external considerations might be expected to
limit the Board’s vigor in pressing all available arguments; (4) what consequences would
follow if the Board failed to defend the district court’s disparate impact holding on appeal;
or (5) whether the Board’s status as a government entity requires the organizations to make
a heightened showing of inadequacy to intervene on appeal, cf. Stuart v. Huff, 706 F.3d
345, 351 (4th Cir. 2013) (requiring such a showing in district court).
But we need not answer those questions today. See PDK Lab’ys Inc. v. Drug Enf’t
Admin., 362 F.3d 786, 799 (D.C. Cir. 2004) (Roberts, J., concurring in part and concurring
in judgment) (“[I]f it is not necessary to decide more, it is necessary not to decide more.”).
The Board has now unambiguously represented to this Court—in briefing and at oral
argument—that it intends to defend the district court’s disparate impact holding on appeal.
We take the Board at its word and emphasize that our decision to deny the current motion
is based on that representation.
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Once the Board, as appellee, presents a disparate impact argument in its brief, the
district court’s conclusion on that point will be before us and no questions of forfeiture will
arise. Cf. Alvarez v. Lynch, 828 F.3d 288, 295 (4th Cir. 2016) (stating an appellee’s
“outright failure to join in the adversarial process would ordinarily result in” forfeiture of
any arguments not made). And even if the Board does not present the disparate impact
argument with the vigor or in the same way the organizations would, appellate courts are
“not hidebound by the precise arguments of counsel.” United States v. Sineneng-Smith,
140 S. Ct. 1575, 1581 (2020).
Given that, it is hard to see what would change materially if we granted the current
motion. If permitted to intervene in this Court, the organizations would be entitled to do
two things: seek leave to file a separate brief and attempt to participate in oral argument.
See 4th Cir. R. 12(e) (“Intervenors are required to join in the brief for the side which they
support unless leave to file a separate brief is granted by the Court.”). But the organizations
may do the same as amici, just as they did in the district court. See Fed. R. App. P. 29(a)(2)
& (8); see McHenry v. Commissioner, 677 F.3d 214, 227 (4th Cir. 2012) (“Numerous cases
support the proposition that allowing a proposed intervenor to file an amicus brief is an
adequate alternative to permissive intervention.”); Wright & Miller, 7C Fed. Prac. & Proc.
Civ. § 1913 (3d ed. 2023) (discussing “common practice [of ] allow[ing] the applicant to
file a brief amicus curiae”).
When asked what harm they will suffer absent intervention if the Board fulfills its
promise to make a disparate impact argument, the organizations responded that being
granted intervention before this Court would ensure they also are parties for any future
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proceedings before the Supreme Court. See Oral Arg. 12:44–13:40; see also Sup. Ct. R.
12(6) (stating that, subject to an exception not applicable here, “[a]ll parties to the
proceedings in the court whose judgment is sought to be reviewed are deemed parties
entitled to file documents in this Court”). But, here too, the Board represents it would
continue to defend the district court’s decision on both grounds in any further proceedings.
See Oral Arg. 22:52–23:20. Because of that, we need not decide whether—and if so,
when—the ability to participate in future proceedings bears on appellate intervention
questions. See, e.g., Fed. R. Civ. P. 24 (outlining standards for intervention in civil cases
without mentioning anything about the ability to participate in later appeals); Sutphen Ests.
v. United States, 342 U.S. 19, 23 (1951) (finding no abuse of discretion in denying
permissive intervention where “the claim of injury to [the movant] is too speculative and
too contingent on unknown factors”); Day v. Apoliona, 505 F.3d 963, 965–66 (9th Cir.
2007) (granting intervention on appeal where “none of the current parties will file a petition
for rehearing or for rehearing en banc”).
* * *
The motion to intervene on appeal is denied without prejudice. The Clerk is directed
to reinstate the briefing schedule.
SO ORDERED
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