State of Nevada et al v. United States Department of Labor et al

Filing 98

MEMORANDUM OPINION AND ORDER - It is therefore ORDERED that Texas AFLCIO's Motion to Intervene (Dkt. 67 ) is DENIED. Signed by Judge Amos L. Mazzant, III on 8/31/2017. (baf, )

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United States District Court
EASTERN DISTRICT OF TEXAS
SHERMAN DIVISION

STATE OF NEVADA, ET AL.
v.
UNITED STATES DEPARTMENT OF
LABOR, ET AL.

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Civil Action No. 4:16-CV-731
Judge Mazzant
LEAD

MEMORANDUM OPINION AND ORDER
Pending before the Court is the Texas AFL–CIO’s (the “AFL–CIO”) Motion to Intervene
(Dkt. #67). After reviewing the relevant pleadings, the Court denies the AFL–CIO’s motion.
BACKGROUND
On March 23, 2014, President Obama issued a memorandum directing the Secretary of
Labor to “modernize and streamline the existing overtime regulations for executive,
administrative, and professional employees.” Presidential Memorandum of March 13, 2014;
Updating and Modernizing Overtime Regulations, 79 Fed. Reg. 18,737, 18,737 (Mar. 13, 2014).
Although the Department revised regulations in 2004, the President opined, “[R]egulations
regarding . . . overtime

requirements . . . for

executive,

administrative,

and

professional

employees . . . have not kept up with our modern economy.” Id. In response to the President’s
memorandum, the United States Department of Labor (the “Department”) published a Notice of
Proposed Rulemaking to revise 29 C.F.R. Part 541. The Department received more than 293,000
comments on the proposed rule, including comments from businesses and state governments,
before publishing the final version of the rule (the “Final Rule”) on May 23, 2016.
The State of Nevada and twenty other states (collectively, “State Plaintiffs”) filed suit
against the Department, the Wage and Hour Division of the Department, and their agents

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(collectively, “Defendants”) challenging the Final Rule (Dkt. #1). On October 12, 2016, State
Plaintiffs moved for emergency preliminary injunctive relief (Dkt. #10).
The Plano Chamber of Commerce and more than fifty-five Texas and national business
groups (collectively, “Business Plaintiffs”) filed a similar action challenging the Final Rule in
Plano Chamber of Commerce et al. v. Perez et al., No. 4:16-CV-732 (E.D. Tex. Sept. 20, 2016).
On October 14, 2016, Business Plaintiffs moved for expedited summary judgment (No. 4:16CV-732, Dkt. #7; No. 4:16-CV-731, Dkt. #35). The Court consolidated Business Plaintiffs’
action with the State Plaintiffs’ action on the unopposed motion from Business Plaintiffs (No.
4:16-CV-732; Dkt. #11).
On November 16, 2016, the Court held a preliminary injunction hearing to consider oral
argument regarding State Plaintiffs’ motion. On November 22, 2016, the Court granted State
Plaintiffs’ emergency motion for preliminary injunctive relief (Dkt. #60).
On December 9, 2016, the AFL–CIO filed its motion to intervene (Dkt. #67). On
December 15, 2016, Business Plaintiffs filed a response (Dkt. #72).

The next day, State

Plaintiffs also filed a response (Dkt. #74). On December 22, 2016, the AFL–CIO filed a reply
(Dkt. #78). On December 28, 2016, State Plaintiffs filed a sur-reply (Dkt. #79).
LEGAL STANDARD
Federal Rule of Civil Procedure 24 provides for two forms of intervention:
(1) intervention of right (mandatory intervention); and (2) permissive intervention. Fed. R. Civ.
P. 24.
A proposed intervenor is entitled to mandatory intervention if the following elements are
satisfied:
(1) the application for intervention must be timely; (2) the applicant must have an
interest relating to the property or transaction which is the subject of the action;

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(3) the applicant must be so situated that the disposition of the action may, as a
practical matter, impair or impede his ability to protect that interest; (4) the
applicant’s interest must be inadequately represented by the existing parties to the
suit.
Texas v. United States, 805 F.3d 653, 657 (5th Cir. 2015).

“Failure to satisfy any one

requirement precludes intervention of right.” Haspel & Davis Milling & Planting Co. v. Bd. of
Levee Comm’rs of the Orleans Levee Dist., 493 F.3d 570, 578 (5th Cir. 2007).
If intervention is not mandatory, then it is permissive. A court may permit anyone to
intervene whom “has a claim or defense that shares with the main action a common question of
law or fact” as long as the intervention does not “unduly delay or prejudice the adjudication of
the rights of the original parties.” Fed. R. Civ. P. 24(b); see also Heaton v. Monogram Credit
Card Bank of Ga., 297 F.3d 416, 422 (5th Cir. 2002) (“Federal courts should allow intervention
where no one would be hurt and the greater justice could be attained.”). This decision to permit
intervention is a “wholly discretionary” one, even if there is a common question of law or fact
and the requirements of Rule 24(b) are satisfied. Wal-Mart Stores, Inc. v. Tex. Alcoholic
Beverage Comm’n, No. 1-15-CV-134, 2015 WL 11613286, at *2 (W.D. Tex. Dec. 22, 2015)
(quoting Bush v. Viterna, 740 F.2d 350, 359 (5th Cir. 1984)).
ANALYSIS
The AFL–CIO seeks to intervene in this action, arguing it has met the requirements of
both mandatory intervention and permissive intervention. In terms of mandatory intervention,
Business and State Plaintiffs oppose the AFL–CIO’s motion on two grounds: (1) the AFL–CIO’s
intervention is untimely; and (2) the AFL–CIO lacks a legally protectable interest in the matter
because the Department is adequately representing the Final Rule. State Plaintiffs and Business
Plaintiffs reassert their untimely arguments to oppose permissive intervention. The Court will
address each of these arguments in turn.

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A. Mandatory Intervention
The Court considers whether the AFL–CIO’s motion to intervene is timely. The Fifth
Circuit has articulated four factors for district courts to weigh in assessing whether a proposed
intervenor timely sought intervention:
(1) the length of time during which the would-be intervenor actually knew or
reasonably should have known of its interest in the case before it petitioned for
leave to intervene; (2) the extent of the prejudice that the existing parties to the
litigation may suffer as a result of the would-be intervenor’s failure to apply for
intervention as soon as it knew or reasonably should have known of its interest in
the case; (3) the extent of the prejudice that the would-be intervenor may suffer if
intervention is denied; and (4) the existence of unusual circumstances militating
either for or against a determination that the application is timely.
Sommers v. Bank of Am., N.A., 835 F.3d 509, 512–13 (5th Cir. 2016). The Court makes a
timeliness determination based on all of the circumstances in the case. Lucas v. McKeithen,
102 F.3d 171, 173 (5th Cir. 1996).
After reviewing the Fifth Circuit’s timeliness factors, the Court finds the AFL–CIO’s
motion is untimely. The AFL–CIO knew it had an interest in this case since September 20,
2016, when both Plaintiffs filed separate suits against the Department. However, the AFL–CIO
waited almost two months before filing its motion to intervene on December 2, 2016. This
litigation has progressed significantly in the months preceding the AFL–CIO motion. The Court
now considers the AFL–CIO’s motion after the parties have briefed and argued State Plaintiffs’
preliminary injunction motion, after the Court has ruled on that motion, after the parties have
briefed Business Plaintiffs’ summary judgment motion, and after Defendants have filed an
interlocutory appeal regarding the Court’s injunction order. Allowing intervention at this stage
in the litigation would prejudice the existing parties by delaying the Court’s consideration of
Business Plaintiffs’ ripe summary judgment motion. The AFL–CIO has not demonstrated it will

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be prejudiced if it is not made party to this lawsuit. In addition, the Court determines no unusual
circumstances exist for or against the AFL–CIO’s intervention.
Even if the AFL–CIO’s motion was timely, the Court finds Defendants are adequately
representing its interests. The AFL–CIO believes the Defendants will amend or repeal the Final
Rule once the incoming administration takes over on January 20, 2017. Specifically, the AFL–
CIO states Secretary of Labor nominee Andrew Puzder “may” amend or repeal the Final Rule.
As the proposed intervenor, the AFL–CIO bears the burden to show inadequate
representation. The Supreme Court refers to this burden as “minimal,” requiring only a showing
“that representation of [the intervenor’s] interest ‘may be’ inadequate.” Trbovich v. United Mine
Workers, 404 U.S. 528, 538 n.10 (1972).

Jurisprudence has created two presumptions of

adequate representation. The first presumption occurs “when the putative representative is a
governmental body or officer charged by law with representing the interests of the absentee.”
Edwards v. City of Hous., 78 F.3d 983, 1005 (5th Cir. 1996). To overcome this presumption, the
applicant must show “its interest is in fact different from that of the [governmental entity] and
that the interest will not be represented by [it].” Id. (quoting Hopwood v. Texas, 21 F.3d 603,
605 (5th Cir. 1994)). The second presumption occurs when the applicant intervenor’s objective
is ultimately the same as a party to the lawsuit. Id. In such cases, the intervenor must show
adversity of interest, collusion, or nonfeasance by the existing party to overcome the
presumption. Id.
The AFL–CIO has not overcome either presumption. First, the current Secretary of
Labor is Alexander Acosta. The AFL–CIO did not express concerns regarding the Trump
Administration outside the scope of Mr. Puzder’s public statements about the Final Rule. In
every reference to Mr. Puzder, the AFL–CIO never expanded its concerns to include the Trump

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administration or Secretary Acosta. Thus, the threat of Mr. Puzder’s contrary views of the Final
Rule was extinguished when Secretary Acosta replaced him. Second, the AFL–CIO has not
shown the Department has an adverse interest, colluded, or committed nonfeasance. Brumfield
v. Dodd, 749 F.3d 339, 345 (5th Cir. 2014). Therefore, Defendants are adequately representing
the AFL–CIO’s interests.
Because the AFL–CIO has failed to show its motion is timely and that Defendants are
adequately representing its interests, the Court will not consider the AFL–CIO’s arguments for
mandatory intervention. See Haspel, 493 F.3d at 578. Accordingly, the Court denies the AFL–
CIO’s right to mandatorily intervene in this action.
B. Permissive Intervention
The Court’s determination of permissive intervention is a wholly discretionary one. See
United States v. City of New Orleans, 540 F. App’x 380, 381 (5th Cir. 2013) (indicating a district
court may deny permissive intervention even if the requirements of Rule 24(b) are met). In
exercising discretion on a timely motion, the Court considers if the intervenor has a claim or
defense that shares with the main action a common question of law or fact, and whether the
intervention will cause undue delay or prejudice. Fed. R. Civ. P. 24(b).
The Court exercises its discretion to deny the AFL–CIO’s motion for permissive
intervention based on its untimely motion to intervene. Even if the AFL–CIO’s motion was
timely, the Court would still deny the AFL–CIO’s motion. The Court finds the AFL–CIO seeks
to assert defenses that Defendants may have already raised. Any intervention would serve only
to delay litigation, especially since Defendants are representing the AFL–CIO’s interests.

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.
CONCLUSION
Accordingly, it is therefore ORDERED that Texas AFL–CIO’s Motion to Intervene
(Dkt. #67) is DENIED.

SIGNED this 31st day of August, 2017.

___________________________________
AMOS L. MAZZANT
UNITED STATES DISTRICT JUDGE

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