McCrory et al v. United States of America et al

Filing 53

ORDER denying movant Johnson's 33 Motion to Intervene. Signed by District Judge Terrence W. Boyle on 9/1/2016. Certified copy sent to pro se movant via US Mail to 208 Nydegg Road, New Bern, NC 28562. (Romine, L.)

IN THE UNITED STATES DISTRICT COURT
FOR THE EASTERN DISTRICT OF NORTH CAROLINA
WESTERN DIVISION
No. 5:16-CV-238-BO

PATRICK L. MCCRORY, in his official
capacity as Governor of the State of North
Carolina, and FRANK PERRY, in his
official capacity as Secretary, North
Carolina Department of Public Safety,

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Plaintiffs,

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v.

ORDER

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UNITED STATES OF AMERICA, et al.,

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Defendants.

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This cause comes before the Court on a motion by Steven-Glenn: Johnson to intervene as
a plaintiff in this action under Rule 24 of the Federal Rules of Civil Procedure. [DE 33].
Plaintiffs and defendants have noted their opposition to intervention by Johnson. [DE 45, 47].
For the reasons discussed below, the motion to intervene is denied.
BACKGROUND
This action concerns the State of North Carolina's enactment of the Public Facilities
Privacy and Security Act, specifically Part I of North Carolina Session Law 2016-3, House Bill
2. Plaintiffs' complaint seeks a declaratory judgment that they are in compliance with Title VII
of the Civil Rights Act of 1964 (Title VII), 42 U .S.C. § 2000e, et seq., and the Violence Against
Women Reauthorization Act (VAWA), 42 U.S.C. § 13925(b)(13), by following state law
regarding bathroom and changing facility use by state employees.
Proposed-intervenor Johnson moves in his capacity as a natural born North Carolinian to

intervene in this action, stating that he is
among the general class of North Carolinians or general public whose trust has
been betrayed by the North Carolina Bar and other acting public officials who
have failed to take, subscribe and/or file the proper oath in the proper office that
qualifies each of those acting officials to hold and take upon the duties of the
individual office that they currently purport to hold, including but not limited to
all attorneys-at-law in North Carolina, the office of Governor, the Attorney
General, and the Judges of the NC Judicial Branch.
[DE 33 at 2]. Johnson contends that, as attorney-in-fact of the State and his appointment as
trustee of the resulting trust declaration and agreement, he has the authority to bring this action
as the current plaintiffs do not hold the offices they purport to hold and do not sufficiently
represent the interests of Johnson or the general population of North Carolina. Johnson's
proposed complaint in intervention seeks entry of judgment pursuant to 28 U.S.C. § 2201 that
House Bill 2 is null and void due to the fact that it was not enacted by properly sworn officers or
members of the General Assembly and that the United States of America has no jurisdiction to
dictate a change to the status quo common law of North Carolina. [DE 33-1].
DISCUSSION
Intervention by a party in an existing action must be permitted under certain
circumstances. Rule 24(a)(2) mandates that an application for intervention as ofright "must
meet all four of the following requirements: (1) the application to intervene must be timely; (2)
the applicant must have an interest in the subject matter of the underlying action; (3) the denial
of the motion to intervene would impair or impede the applicant's ability to protect its interest;
and (4) the applicant's interest is not adequately represented by the existing parties to the
litigation." Houston Gen. Ins. Co. v. Moore, 193 F.3d 838, 839 (4th Cir. 1999). Alternatively, a
court may permit a party to intervene in an action where the applicant has a claim or defense that
shares a common question oflaw or fact with the primary action. Fed. R. Civ. P. 24(b)(l)(B).

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Whether a party has satisfied the requirements for intervention as of right or permissive
intervention is committed to the discretion of the court. Stuart v. Huff, 706 F.3d 345, 349 (4th
Cir. 2013).
Johnson has failed to demonstrate that he must be permitted to intervene as of right.
While Johnson's application to intervene was made early in the course of the case and he
arguably has an interest in the underlying action, the denial of his motion to intervene would not
impair or impede his ability to protect his interest. "[I]n order to intervene of right, a party need
not prove that he would be bound in a res judicata sense by any judgment in the case," but rather
must show that the disposition of the case would impair his "ability to protect his interest in the
transaction." Spring Const. Co., Inc. v. Harris, 614 F.2d 374, 377 (4th Cir. 1980). Plaintiffs
filed this suit seeking a declaration that House Bill 2 does not violate either Title VII or VA WA.
Johnson's claims as reflected in his proposed intervenor complaint concern the authority of the
legislature and the governor to enact House Bill 2, as well as the United States' jurisdiction to
dictate a change to North Carolina's status quo common law, including but not limited to the
tenets of House Bill 2. Not allowing Johnson to intervene in this action would not force him to
try to relitigate issues present in this case, Liberty Mut. Fire Ins. Co. v. Lumber Liquidators, Inc.,
314 F.R.D. 180, 186 (E.D. Va. 2016), or preclude him "from later pressing [his] interests in
another suit." Francis v. Chamber of Com. of United States, 481F.2d192, 195 (4th Cir. 1973).
Moreover, the practical burden of initiating a separate suit is an insufficient basis upon which to
find that an applicant in intervention's interests would be impaired or impeded. Ohio Valley
Envtl. Coalition, Inc. v. McCarthy, 313 F.R.D. 10, 26 (S.D.W. Va. 2015) (citing Francis, 481
F .2d at 195).
Johnson has thus failed to satisfy one of the four requirements, and cannot therefore

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demonstrate that he should be allowed to intervene as of right.
Nor has Johnson demonstrated that he should be allowed to permissively intervene. A
party may be allowed to permissively intervene where he "has a claim or defense that shares with
the main action a common question oflaw or fact." Fed. R. Civ. P. 24(b)(l)(B). As noted
above, the decision to permit a party to permissively intervene is committed to the Court's
discretion, and in exercising that discretion a court "must consider whether the intervention will
unduly delay or prejudice adjudication of the original parties' rights." Fed. R. Civ. P. 24(b)(3).
Where, as here, a party seeks to inject additional issues into a case which would protract the
litigation and cause undue delay, permissive intervention is properly denied. ManaSota-88, Inc.

v. Tidwell, 896 F.2d 1318, 1323 (11th Cir. 1990).
CONCLUSION
Accordingly, for the reasons discussed above, movant Johnson's motion to intervene [DE
33] is DENIED.

SO ORDERED, this _l_ day of September, 2016.

~~A~
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TRRENCE
BOYLE
UNITED STATES DISTRICT JUDGE

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