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

Filing 224

MEMORANDUM ORDER. Signed by JUDGE THOMAS D. SCHROEDER on 12/16/2016, that the motion of Chris Sevier and Elizabeth Ording to intervene (Doc. 130 ) is DENIED. (Daniel, J)

IN THE UNITED STATES DISTRICT COURT
FOR THE MIDDLE DISTRICT OF NORTH CAROLINA
UNITED STATES OF AMERICA,
Plaintiff,
v.
STATE
al.,

OF

NORTH

CAROLINA,

et

)
)
)
)
)
)
)
)
)

1:16CV425

Defendants.
MEMORANDUM ORDER
Before

the

constitutional

court

and

is

statutory

a

motion
challenge

to
to

intervene
portions

in
of

this
North

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

(Doc. 130.)

Chris Sevier and Elizabeth Ording (the “proposed intervenors”) are
“soon-to-be employee[s] of the University of North Carolina” and
a self-identified “machinist” and “Zoophile,” respectively.
131 at 11.)

(Doc.

They seek intervention 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 University of North

Carolina (“UNC”)-related Defendants oppose the motion.
158, 169.)

(Docs.

For the reasons set forth below, the motion will be

denied.
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 filed an action, designated number 1:16cv236, 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.
On May 9, 2016, the United States filed the present lawsuit
in this court against the State, Governor McCrory (in his official
capacity), the North Carolina Department of Public Safety, the
University of North Carolina, and the University of North Carolina
Board of Governors, seeking a declaration that compliance with
HB2’s

provisions

relating

to

multiple-occupancy

bathrooms

and

changing facilities constitutes sex discrimination in violation of
2

Title IX, the Violence Against Women Reauthorization Act of 2013,
42 U.S.C. § 13925(b)(13), and Title VII of the Civil Rights Act of
1964, 42 U.S.C. § 2000e et seq., and requesting an injunction
against enforcement of the law.

(Doc. 1 in case no. 1:16CV425.) 1

On August 26, 2016, following briefing and a full hearing,
this court entered a memorandum opinion, order, and preliminary
injunction in favor of the individual plaintiffs in case 1:16cv236.
(Doc. 127 in 1:16cv236.)

In the present case, the United States

filed a motion for preliminary injunction (Doc. 73), which has
since been fully briefed.

Shortly thereafter, the Supreme Court

granted the petition for writ of certiorari in G.G. v. Gloucester
County School Board, 822 F.3d 709 (4th Cir. 2016), cert. granted
in part, 2016 WL 4565643 (U.S. Oct. 28, 2016) (No. 16-273), a case
the parties acknowledge significantly affects the analysis of the
issues before the court.

Consequently, the parties in the present

cases have sought a stay of all further proceedings (except the
United States wishes to have its motion for preliminary injunction
decided), pending the disposition of G.G.

(Doc. 221.)

Sevier and Ording filed their motion to intervene on August
11, 2016.

(Doc. 130.)

They summarize their claim as follows:

If the Federal Government is going to potentially codify
1

That same day, State officials filed two separate declaratory judgment
actions in the Eastern District of North Carolina. Those actions have
been dismissed now that the interested parties in those cases have been
permitted to intervene in the present actions. Another action brought
by North Carolinians for Privacy, civil action 1:16cv845, has been
voluntarily dismissed. (Doc. 63 in case 1:16cv845.)

3

prospective “non-realities” of a religious orthodoxy
concerning “sexual orientation,” it must legally codify
the other denominations unproven faith based assumptions
and identify narrative within the same religious
orthodoxy as well. Allowing the Plaintiff to intervene
will keep the Court, the original plaintiff, and the
defendants from having the wrong conversation under the
Constitution, which was the fundamental error that took
place in Obergefell [v. Hodges, 135 S. Ct. 2584 (2015)]
and [United States v.] Windsor[, 133 S. C.t 2675
(2013)].
(Doc. 121 at 11.)
II.

ANALYSIS
The

proposed

intervenors

seek

to

intervene

nominally

as

Plaintiffs in this case pursuant to Federal Rule of Civil Procedure
24(a) and (b), although their arguments indicate they may actually
support the law.

(See Doc. 131 at 17 n.16 (“The state has a

compelling interest to pass HB2 and legally nullify gay marriage
so that it is not promoting obscenity in action.”).)

Of the

parties who have filed a response, all uniformly oppose the motion.
“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.’”

Stuart v.

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

All of these criteria must

Va. v. Westinghouse Elec. Corp., 542 F.2d 214, 216 (4th
4

Cir. 1976) (denying intervention where intervenor’s interests were
adequately represented by plaintiffs).

When a State statute is

challenged and a proposed intervenor shares a common objective
with the State 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, the proposed intervenors must show
collusion between the existing parties, adversity of interests
between themselves and the Defendants, or nonfeasance on the part
of the Defendants.

See id. at 350, 352–55.

Under Rule 24(b) the court may permit anyone who “has a claim
or defense that shares with the main action a common question of
law or fact” to intervene on timely motion.
24(b)(1)(B).

“In

exercising

its

discretion,

Fed. R. Civ. P.
the

court

must

consider whether the intervention will unduly delay or prejudice
the adjudication of the original parties’ rights.”
P. 24(b)(3).

Fed. R. Civ.

Thus, where a movant seeks permissive intervention,

the movant must satisfy three requirements: (1) the motion is
timely; (2) the existence of a shared question of law or fact in
common with the main action; and (3) no undue delay or prejudice
to the existing parties will result from the intervention.
5

See

Wright

v.

Krispy

Kreme

Doughnuts,

Inc.,

231

F.R.D.

475,

479

(M.D.N.C. 2005); Solo Cup Operating Corp. v. GGCY Energy LLC, Civil
No. WDQ-12-3194, 2013 WL 2151503, at *2 (D. Md. May 15, 2013);
Shanghai Meihao Elec., Inc. v. Leviton Mfg. Co. Inc., 223 F.R.D.
386, 387 (D. Md. 2004).

Trial courts are directed to construe

Rule 24 liberally to allow intervention, where appropriate. Feller
v. Brock, 802 F.2d 722, 729 (4th Cir. 1986) (noting that “liberal
intervention is desirable to dispose of as much of a controversy
involving as many apparently concerned persons as is compatible
with efficiency and due process” (citation and internal quotation
marks

omitted));

Capacchione

v.

Charlotte-Mecklenburg

Educ., 179 F.R.D. 505, 507 (W.D.N.C. 1998) (same).

Bd.

of

Ultimately,

the decision rests wholly in the trial court’s proper exercise of
discretion.

Wright, 231 F.R.D. at 479.

Here, the proposed intervenors fail to satisfy the standards
under either rule.

Their contemplated pleading raises factual

allegations and legal arguments they claim arise out of the passage
of HB2 and its application, but it is readily apparent that their
interests are far from that.

The proposed intervenors seek to

intervene to press their claim that “laws and policies that legally
codify ‘gay marriage,’ ‘gay rights,’ and ‘transgender rights’
violate the first amendment establishment clause” (Doc. 131 at 12)
under

their

contention

that,

“[l]ike

transgenders,

both

intervening Plaintiffs are members of the true minority in the
6

church of western postmodern expressive individual relativism and
the non-obvious class of sexual orientation, only they are in
different but equal sects” (id. at 11 n.1.)

They claim that

“[h]omosexuality,

zoophilia,

transgenderism,

polygamy,

and

machinism are merely sects of the same religion” that must be
treated equally.

(Id. at 13.)

They argue that they have suffered

injury because they “went to UNC and tried to use bathrooms and
locker rooms that were designed for machinists and zoophiles but
there were not any.” (Id. at 16.) As a result, one of the remedies
they seek is to ensure that “zoophiles, machinists, and polygamists
employees [sic] of UNC . . . have the same civil and employment
rights as individuals who self-identify as transgenders.”

(Id. at

13.)
These claims not only fail to bear a “close relationship to
the dispute between the existing litigants.”

Dairy Maid Dairy,

Inc. v. United States, 147 F.R.D. 109, 111 (E.D. Va. 1993).

They

are irrelevant to the litigation before the court and seek to press
new rights not presently raised in the legislation at issue.
United States v. Lehigh Valley Co-op Farmers, Inc., 294 F. Supp.
2d 140 144 (E.D. Pa. 1968).

In any event, even if the proposed

intervenors merely wish to align themselves with one side or the
other in this litigation, they have not demonstrated that any
legitimate interest they may have in that regard is not already
adequately represented by the existing parties.
7

Further,

the

addition

of

the

proposed

intervenors

would

surely cause undue delay and prejudice to the original parties in
this case.

Proposed intervenors’ filings reveal that they seek to

use this litigation to collaterally attack the United States
Supreme Court’s decisions in Obergefell v. Hodges, 135 S. Ct. 2584
(2015), and United States v. Windsor, 133 S. C.t 2675 (2013).
Proposed intervenors claim that permitting their involvement “will
keep the Court, the original plaintiff, and the defendants from
having the wrong conversation under the Constitution, which was
the fundamental error that took place in Obergefell and Windsor.”
(Doc. 131 at 11.)
recognizing

gay

establishment
Constitution.

In essence, proposed intervenors maintain that
and

of

transgender

rights

national

religion

a

(Id. at 12-13.)

is

tantamount
that

to

violates

the
the

Permitting intervention is likely

to significantly complicate the proceedings and unduly expand the
scope of discovery in this case, without garnering any ostensible
corresponding benefit to the existing parties.
at

355

(affirming

necessarily

denial

complicate

the

of

intervention
discovery

Stuart, 706 F.3d
where

process

it

and

“would
consume

additional resources of the court and the parties” without accruing
any benefit to the existing parties).
For these reasons, the motion to intervene, both as of right
and permissively, will therefore be denied.

8

III. CONCLUSION
IT IS THEREFORE ORDERED that the motion of Chris Sevier and
Elizabeth Ording to intervene (Doc. 130) is DENIED.

/s/ Thomas D. Schroeder
United States District Judge
December 16, 2016

9