State of Texas v. EEOC et al

Filing 34

MOTION to Intervene filed by Texas State Conference of the NAACP, Beverly Harrison (Attachments: # 1 Proposed Order) (Cloutman, Edward)

UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,

Case No. 5:13-cv-00255-C
ECF Case

v.
Judge Sam R. Cummings
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION; JACQUELINE A. BERRIEN, in her
official capacity as Chair of the Equal
Employment Opportunity Commission; and
ERIC H. HOLDER, in his official capacity as
Attorney General of the United States,
Defendants,

and

TEXAS STATE CONFERENCE OF THE NAACP
and BEVERLY HARRISON,
Proposed DefendantIntervenors.
MOTION TO INTERVENE OF TEXAS STATE CONFERENCE
OF THE NAACP AND BEVERLY HARRISON
1.

Pursuant to Rules 24(a) and (b) of the Federal Rules of Civil Procedure (“Federal

Rules”) and Rule 7.1 of the Local Civil Rules (“Local Rules”) of the Northern District of Texas,
the Texas State Conference of the NAACP (hereinafter “Texas NAACP”) and Beverly Harrison
(collectively with the Texas NAACP, “Applicants”) hereby move this Court for leave to
intervene as Defendant-Intervenors.
2.

The Texas NAACP is one of the oldest and largest non-profit organizations in the

state of Texas that promotes and protects the rights of African Americans. It has over sixty
branches across Texas, and the members of those branches are residents of every region of the
state. The Texas NAACP, along with its constituent branches, has worked to eliminate barriers
faced by people with criminal records, including obstacles that prevent those individuals from
obtaining employment.
3.

Beverly Harrison resides in Dallas, Texas. Ms. Harrison is a 58-year-old African-

American woman who retired from the Dallas City Marshal’s Office in 2009 after nearly thirty
years of service to the City of Dallas. Ms. Harrison has continued to work since her retirement
and, in 2013, applied for a job with Dallas County Schools (“DCS”) as a school crossing guard
or bus monitor. Ms. Harrison received a conditional offer of employment from DCS and began
work as a school crossing guard. After eight days on the job, however, Ms. Harrison learned that
DCS was terminating her employment because of an entry that appeared on her criminal
background report, which indicated that Ms. Harrison had been convicted of felony assault in
1975. In 1975, when she was 18 years old, Ms. Harrison pleaded no contest to the offense of
aggravated assault, a third-degree felony, and was sentenced to five years of probation.
However, in 1977, after two years of satisfactory compliance with the terms of her probation, the
Dallas County Criminal Court issued an order discharging Ms. Harrison from probation early,
setting aside the judgment of conviction, and “releas[ing her] from all penalties and disabilities
resulting from the Judgment of Conviction.” In the nearly 40 years since, Ms. Harrison has
never been convicted of a crime. Nonetheless, the entry from 1975 renders her ineligible to
secure employment with certain governmental employers in the State of Texas.
4.

Applicants seek intervention as of right under Rule 24(a)(2) of the Federal Rules

of Civil Procedure. They have interests related to the subject of the action, and the disposition of

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this action may, as a practical matter, impair or impede their ability to protect those interests.
Moreover, Applicants’ interests may not be adequately represented by the existing parties to the
litigation.
5.

In the alternative, Applicants seek permissive intervention under Rule 24(b)(2) of

the Federal Rules of Civil Procedure. Applicants’ defenses and the main action share common
questions of law and fact, and their participation will not delay or prejudice the adjudication of
the rights of the parties.
6.

Applicants’ Motion to Intervene is timely, given that the complaint was filed on

November 4, 2013 (Dkt. No. 1), Defendants have not yet filed an answer, and a case
management schedule has not yet been set. See Doe #1 v. Glickman, 256 F.3d 371, 377 (5th Cir.
2001) (motion to intervene filed shortly after intervenor became aware lawsuit would implicate
its interests was timely); Wildearth Guardians v. Salazar, 272 F.R.D. 4, 15 (D.D.C. 2010)
(undisputed that motion was timely filed forty-one days before the defendants filed an answer to
the amended complaint, before the administrative record had been filed, and before a briefing
schedule for dispositive motions had been set). To date, the only substantive events that have
occurred in the litigation are: (i) the filing of an amended complaint by Plaintiff on March 18,
2014 (Dkt. No. 24), and (ii) the filing of a motion to dismiss by Defendants on April 4, 2014
(Dkt. Nos. 29-33). Because the litigation is in its earliest stages, the existing parties will not
suffer any prejudice if Applicants’ Motion to Intervene is granted.
7.

Applicants’ Motion to Intervene is also timely because it has been filed promptly

upon learning of Applicants’ interests in the case. Applicants make this application at the present
time, notwithstanding Defendants’ pending motion to dismiss, in order to promptly alert the
Court and the existing parties of their interests in this matter and to avoid the prejudice and

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unnecessary delay that could be occasioned by deferring the filing until after the resolution of the
pending motion.
8.

However, because Defendants’ pending motion to dismiss could dispose of this

case entirely, Applicants respectfully request that the Court, in the interest of judicial economy,
stay consideration of their Motion to Intervene until the pending motion is resolved. As an initial
matter, Applicants strongly agree with Defendants that this case should be dismissed on
jurisdictional grounds. Plaintiff lacks standing to bring this action, and even assuming arguendo
that Plaintiff did have standing, none of its claims are ripe. Moreover, briefing Applicants’
Motion to Intervene at the present time would require both the parties and the Court to devote
resources to addressing their motion concurrently with Defendants’ motion to dismiss.

If,

however, Defendants’ motion is granted in full, Applicants’ request to intervene will become
moot. And even if Defendants’ motion is only granted in part, the Court’s order and opinion will
inform the extent to which Applicants’ interests are likely to be impaired by disposition of this
action. Delaying briefing and adjudication of Applicants’ Motion to Intervene will not prejudice
the parties and will not result in any meaningful delay to the proceedings.
9.

Therefore, Applicants request that, in the event that the pending motion to dismiss

is denied in whole or in part, or if the First Amended Complaint is dismissed but later reinstated
in whole or in part by the Court of Appeals, the Court enter the following schedule on
Applicants’ Motion to Intervene:
Event

Proposed Deadline

Proposed Defendant-Intervenors submit memorandum of
law in support of Motion to Intervene, Proposed Answer
to the Complaint, and Motions for Pro Hac Vice
Admissions

No later than 30 days after Court
rules on Defendants’ Motion to
Dismiss or 30 days after Court of
Appeals issues mandate

Parties’ Responsive Briefs

30 days from the date Proposed
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Event

Proposed Deadline
Defendant-Intervenors submit
memorandum of law

Proposed Defendant-Intervenors’ Reply Brief

10.

14 days from the date the Parties
submit their responsive briefs

As detailed in the Certificate of Conference, Applicants have conferred with the

parties, and they take no position on Applicants’ request for a briefing schedule.

Dated:

May 22, 2014

Respectfully submitted,

s/ Edward B. Cloutman
Edward B. Cloutman III (Bar No. 04411000)
CLOUTMAN & CLOUTMAN, L.L.P.
3301 Elm Street
Dallas, Texas 75226
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Sherrilyn Ifill
Christina A. Swarns
ReNika C. Moore**
Ria Tabacco Mar**
NAACP LEGAL DEFENSE & EDUCATIONAL
FUND, INC.
40 Rector Street, 5th Floor
New York, New York 10006
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]
[e-mail]
[e-mail]
Johnathan J. Smith**
NAACP LEGAL DEFENSE & EDUCATIONAL
FUND, INC.
1444 I Street NW, 10th Floor
Washington, District of Columbia 20005
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Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
Kim Keenan
Marshall Taylor
Victor Goode
Of Counsel
NATIONAL ASSOCIATION FOR THE
ADVANCEMENT OF COLORED PEOPLE
4805 Mount Hope Drive
Baltimore, Maryland 21215
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]
[e-mail]
[e-mail]
Attorneys for Proposed Defendant-Intervenors
**applications for pro hac vice admission
forthcoming

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UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF TEXAS
LUBBOCK DIVISION
STATE OF TEXAS,
Plaintiff,

Case No. 5:13-cv-00255-C
ECF Case

v.
Judge Sam R. Cummings
EQUAL EMPLOYMENT OPPORTUNITY
COMMISSION; JACQUELINE A. BERRIEN, in her
official capacity as Chair of the Equal
Employment Opportunity Commission; and
ERIC H. HOLDER, in his official capacity as
Attorney General of the United States,
Defendants,

and
TEXAS STATE CONFERENCE OF THE NAACP
and BEVERLY HARISON,
Proposed DefendantIntervenors.

CERTIFICATE OF CONFERENCE
Pursuant to Rule 7.1 of the Local Civil Rules of the Northern District of Texas, Counsel
for Proposed Defendant-Intervenors have conferred with counsel for the existing parties. On
May 20, 2014, Arthur D’Andrea, Counsel for Plaintiff, informed Ria Tabacco Mar, Counsel for
Proposed Defendant-Intervenors, via telephone message, that Plaintiff takes no position on
Applicants’ request for a briefing schedule and opposes Applicants’ Motion to Intervene. Ms.
Tabacco Mar left a return telephone message for Mr. D’Andrea but did not receive a response.
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On May 21, 2014, Justin Sandberg, Counsel for Defendants, informed Edward Cloutman,
Johnathan Smith, and Ria Tabacco Mar, Counsel for Proposed Defendant-Intervenors, via
electronic mail, that Defendants will take no position on Applicants’ Motion to Intervene until
such time, if ever, that Proposed Defendant-Intervenors submit their memorandum of law in
support of Motion to Intervene and Proposed Answer.

Dated:

May 22, 2014

s/ Edward B. Cloutman
Edward B. Cloutman III (Bar No. 04411000)
CLOUTMAN & CLOUTMAN, L.L.P.
3301 Elm Street
Dallas, Texas 75226
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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CERTIFICATE OF SERVICE
I certify that on May 22, 2014, the foregoing was filed electronically with the Clerk of Court to
be served by operation of the Court’s electronic filing system upon the following currently listed
electronic filing users:
Jonathan F. Mitchell
Andrew Stephen Oldham
Arthur D’Andrea
Office of the Texas Attorney General
209 West 14th Street
P.O. Box 12548
Austin, Texas 70711
Justin M. Sandberg
United States Department of Justice
Civil Division, Federal Programs Branch
20 Massachusetts Avenue NW, Room 7302
Washington, District of Columbia 20001

Dated:

May 22, 2014

s/ Edward B. Cloutman
Edward B. Cloutman III (Bar No. 04411000)
CLOUTMAN & CLOUTMAN, L.L.P.
3301 Elm Street
Dallas, Texas 75226
Telephone: [phone]
Facsimile: [phone]
E-Mail: [e-mail]

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