UNITED STATES OF AMERICA V. STATE OF NORTH CAROLINA, ET AL.

Filing 109

MEMORANDUM ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 7/25/2016, that the motion to intervene by Steven-Glenn: Johnson (Doc. 34 ) is DENIED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE OF NORTH CAROLINA, et
al.,
Defendants,
and
PHIL BERGER, in his official
capacity as President Pro
Tempore of the North Carolina
Senate; and TIM MOORE, in his
official capacity as Speaker
of the North Carolina House of
Representatives,
Intervenor-Defendants.

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1:16CV425

MEMORANDUM ORDER
Before the court is Steven-Glenn: Johnson’s pro se motion to
intervene

in

this

constitutional

and

statutory

challenge

to

portions of North Carolina’s Public Facilities Privacy & Security
Act, 2016 N.C. Sess. Laws 3, commonly known as House Bill 2
(“HB2”).

(Docs. 34.)

Johnson seeks to intervene as of right,

pursuant to Federal Rule of Civil Procedure 24(a) or, in the
alternative, permissively pursuant to Rule 24(b).

The United

States and all of the original, non-intervenor defendants oppose
Johnson’s motion.

(Docs. 63, 65, 67.)

below, the motion will be denied.

For the reasons set forth

I.

BACKGROUND
The North Carolina General Assembly passed HB2 on March 23,

2016, and Governor Patrick L. McCrory signed the bill into law
later that day.

2016 N.C. Sess. Laws 3.

Among other things, HB2

states that multiple occupancy bathrooms and changing facilities,
including those managed by local boards of education, must be
“designated for and only used by persons based on their biological
sex.”

Id.

The

law

also

sets

statewide

nondiscrimination

standards, preempting local and municipal ordinances that conflict
with these standards.

Id.

Almost immediately, HB2 sparked multiple overlapping federal
lawsuits.

On March 28, 2016, the American Civil Liberties Union

of North Carolina, Equality North Carolina, and several individual
plaintiffs (collectively, the “ACLU plaintiffs”) filed an action
in this court against Governor McCrory (in his official capacity),
the

University

of

North

Carolina

and

its

Board

of

Governors

(collectively, “UNC”), and Attorney General Roy Cooper alleging
that HB2 discriminates against transgender, gay, lesbian, and
bisexual individuals on the basis of sex, sexual orientation, and
transgender status in violation of Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681 et seq. (“Title IX”), as well
as the Equal Protection and Due Process clauses of the Fourteenth
Amendment to the United States Constitution.

2

(Doc. 1 in case no.

1:16CV236 (the “236 case”).) 1
On May 9, 2016, the United States filed this action against
the State, Governor McCrory (in his official capacity), the North
Carolina Department of Public Safety (“NCDPS”), and UNC, seeking
a declaration that compliance with HB2’s provisions relating to
multiple-occupancy bathrooms and changing facilities constitutes
sex discrimination in violation of Title IX, the Violence Against
Women

Reauthorization

Act

of

2013,

42

U.S.C.

§ 13925(b)(13)

(“VAWA”), and Title VII of the Civil Rights Act of 1964, 42 U.S.C.
§ 2000e et seq. (“Title VII”), and requesting an injunction against
enforcement of the law.

(Doc. 1.)

That same day, State officials filed two separate declaratory
actions in the Eastern District of North Carolina.

Governor

McCrory and NCDPS filed an action against the United States and
the

United

States

Department

of

Justice

(“DOJ”),

seeking

a

declaration that HB2 does not violate Title VII or VAWA (case no.
5:16cv238

(the

“238

case”)).

Meanwhile,

Senator

Berger

and

Representative Moore filed a separate lawsuit against the DOJ on
behalf of the General Assembly, seeking a declaration that HB2
does

not

violate

declarations

that

Title
DOJ

VII,
had

Title
violated

1

IX,

or

both

VAWA,
the

as

well

as

Administrative

The ACLU plaintiffs filed an amended complaint on April 21, 2016.
(Doc. 9 in the 236 case.) The amended complaint does not name Equality
North Carolina as a plaintiff or Attorney General Cooper as a defendant.

3

Procedure Act and various constitutional provisions (case no.
5:16cv240

(the

“240

case”)).

Finally,

on

May

10,

2016,

an

organization called North Carolinians for Privacy filed its own
action in support of HB2 in the Eastern District of North Carolina,
seeking declaratory and injunctive relief against DOJ and the
United States Department of Education related to Title IX, VAWA,
the

Administrative

Procedure

Act,

and

the

Religious

Restoration Act (case no. 5:16cv245 (the “245 case”)).

Freedom
The 240

and 245 cases have subsequently been transferred to this court and
renumbered 1:16CV844 and 1:16CV845, respectively.

Following the

transfer, this court has granted Senator Berger and Representative
Moore’s motion to intervene permissively in both this action and
in the 236 Case.
II.

ANALYSIS
Johnson

seeks

to

intervene

as

a

defendant

in

this

pursuant to Federal Rule of Civil Procedure 24(a) and (b).

case
Each

basis will be addressed in turn.
A.

Intervention of Right

“Under

Rule

24(a)(2),

a

district

court

must

permit

intervention as a matter of right if the movant can demonstrate
‘(1) an interest in the subject matter of the action; (2) that the
protection of this interest would be impaired because of the
action; and (3) that the applicant’s interest is not adequately
represented by existing parties to the litigation.’”
4

Stuart v.

Huff, 706 F.3d 345, 349 (4th Cir. 2013) (quoting Teague v. Bakker,
931 F.2d 259, 260–61 (4th Cir. 1991)).

The court will not reach

the first two factors because it concludes that, assuming (without
deciding) they have been met, Johnson has failed to demonstrate
that his interests will not be adequately represented by Governor
McCrory, DPS, UNC, and the General Assembly (collectively, the
“State Defendants”).
When a State statute is challenged and a proposed intervenor
shares a common objective with the State Defendants to defend the
validity of the statute, the proposed intervenor “must mount a
strong showing of inadequacy” to be entitled to intervention of
right.

Stuart, 706 F.3d at 352.

This is so because, as the Fourth

Circuit has explained, “when a statute comes under attack, it is
difficult to conceive of an entity better situated to defend it
than the government.”

Id. at 351.

To rebut the presumption of

adequacy, Johnson must show either collusion between the existing
parties, adversity of interests between themselves and the State
Defendants, or nonfeasance on the part of the State Defendants.
See id. at 350, 352–55.
Here,

Johnson

does

interests, or nonfeasance.

not

allege

collusion,

adversity

of

Instead, he argues that the State

Defendants will not adequately represent his interests because, in
his view, they are not legitimate representatives of the State of
North

Carolina.

Johnson

appears
5

to

believe

that

all

public

officials in North Carolina, as well every member of the North
Carolina State Bar (i.e., all licensed lawyers), failed to perform
a

proper

authority.

oath

of

office

and

therefore

(Doc. 34 at 2–4.)

lack

constitutional

Johnson further claims to have

authority to represent the State’s interests in this matter because
he is a resident of North Carolina, “an American National, [a]
creditor to the UNITED STATES, and a father of two daughters and
a grandfather of a baby girl due in October 2016.”
4.)

(See id. at

Finally, Johnson refers to himself as “Attorney in Fact for

the STATE OF NORTH CAROLINA,” a title he claims to have received
by

virtue

of

his

status

as

trustee

to

a

“RESULTING

TRUST

DECLARATION AND AGREEMENT” filed in the Wake County Register of
Deeds Office.

(Id. at 3.)

Johnson’s claims about the lack of authority of State actors
to enact, defend, and enforce State law are frivolous.

To the

extent he seeks to defend the merits of HB2 as a parent and soonto-be

grandfather,

Johnson

has

failed

to

allege

collusion,

nonfeasance, or adversity of interests by those already involved
in the action, as required by Stuart.

He has therefore failed to

demonstrate that he should be permitted to intervene as of right,
and his motion on that ground will be denied.
B.

Permissive Intervention

Johnson also seeks permissive intervention under Rule 24(b).
The court may permit anyone who “has a claim or defense that shares
6

with the main action a common question of law or fact” to intervene
on timely motion.

Fed. R. Civ. P. 24(b)(1)(B).

“In exercising

its discretion, the court must consider whether the intervention
will unduly delay or prejudice the adjudication of the original
parties’

rights.”

Fed.

R.

Civ.

P.

24(b)(3);

see

Bussian

v.

DaimlerChrysler Corp., 411 F. Supp. 2d 614, 631 (M.D.N.C. 2006).
In Stuart, the Fourth Circuit also affirmed the district
court’s denial of permissive intervention.
court

explained

that

adding

the

706 F.3d at 355.

intervenors

would

The

complicate

discovery and result in possible delay without accruing any benefit
to the existing parties.

Id.

Here, Johnson’s vague and frivolous

contentions regarding the oath of office taken by various State
officials are completely unrelated to the issues in this case and
would require additional discovery and legal analysis on broad
issues of State constitutional law.

As a result, the court

concludes that Johnson’s participation would unnecessarily consume
additional judicial resources, further complicate the discovery
process, potentially delay the adjudication of the case on the
merits, and generate little, if any, corresponding benefit to the
existing parties.

See id.; Brock v. McGee Bros. Co., 111 F.R.D.

484, 487 (W.D.N.C. 1986) (denying permissive intervention where
interests

were

adequately

represented

and

intervention

would

needlessly increase the cost and delay disposition of the case).
This is particularly true now that the court has advanced the trial
7

on the merits, requiring a compressed pretrial discovery schedule.
(Doc.

93.)

Johnson’s

motion

to

intervene

permissively

will

therefore be denied.
III. CONCLUSION
For the foregoing reasons,
IT IS THEREFORE ORDERED that the motion to intervene by
Steven-Glenn: Johnson (Doc. 34) is DENIED.

/s/
Thomas D. Schroeder
United States District Judge
July 25, 2016

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