Perez et al v. Perry et al

Filing 904

ORDER GRANTING 871 United States' Motion to Intervene Signed by Judge Orlando L. Garcia and Judge Xavier Rodriguez. United States Circuit Judge Jerry E. Smith, dissenting. (kh)

In the United States District Court
for the
Western District of Texas
SHANNON PEREZ, ET AL.
v.
RICK PERRY, ET AL.

§
§
§
§
§

SA-11-CV-360

ORDER
The United States has filed a motion to intervene in this action pursuant to Federal Rule of
Civil Procedure 24. See docket no. 871. Defendants oppose the intervention on two grounds: (1)
the 2011 plan claims are moot, and (2) the United States has failed to satisfy the Rule 24
requirements for intervention because the motion is untimely and will cause undue delay and
prejudice. See docket no. 877. After careful consideration, the Court will grant the motion and
permit the United States to intervene.
Analysis
The United States moves to intervene in this action pursuant to Rule 24(b)(2)(A) or,
alternatively, Rule 24(b)(1)(B) of the Federal Rules of Civil Procedure. The proposed Complaint
in Intervention is filed under § 2 and § 12(d) of the Voting Rights Act, asserts that Texas’s 2011
redistricting plans were enacted with discriminatory intent and had a discriminatory impact, seeks
to enforce the voting guarantees of the Fourteenth and Fifteenth Amendments to the United States
Constitution, and seeks relief under § 3(c) of the Voting Rights Act.

1

A. Mootness
Defendants’ primary argument is that the motion to intervene should be denied “because this
Court cannot provide any relief on claims against the 2011 plans” and the 2011 plan claims are moot.
We have already concluded that the 2011 plan claims are not moot and that the parties can pursue
relief under § 3(c) with regard to the 2011 plan claims. See docket no. 886. Accordingly,
Defendants’ opposition to intervention on the basis of mootness lacks merit.
B. Rule 24(b)(2)(A)
Rule 24(b)(2)(A) provides, “On timely motion, the court may permit a federal or state
governmental officer or agency to intervene if a party’s claim or defense is based on: (A) a statute
or executive order administered by the officer or agency.” FED. R. CIV. P. 24(b)(2)(A). The D.C.
Court of Appeals has said,
It is a significant fact that the applicant for permissive intervention is a government
official. Rule 24(b) was expressly amended in 1946 so as to permit intervention by
a state or federal governmental official charged with administering a state statute or
regulation on which any party relies for his claim or defense. The amendment was
added to avoid ‘exclusionary constructions’ where public officials seek permission
to intervene, and ‘the amendment in effect expands the concept of ‘claim or defense’
insofar as intervention by a governmental officer or agency is concerned.’ It is
perhaps more accurate to say that it considers the governmental application with a
fresh and more hospitable approach.
...
Even prior to the 1946 amendment, SEC v. United States Realty & Improvement
Corp., 310 U.S. 434, 60 S. Ct. 1044, 84 L. Ed. 1293 (1940), stressed that intervention
to promote a relevant public interest is permissible when the public official charged
with primary responsibility for vindicating that interest seeks to defend it.
...
While a public official may not intrude in a purely private controversy, permissive
intervention is available when sought because an aspect of the public interest with
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which he is officially concerned is involved in the litigation. Notwithstanding this
public interest the official may be denied intervention in the exercise of a sound
judicial discretion finding that intervention would unduly expand the controversy or
otherwise lead to improvident delay or expense.
Nuesse v. Camp, 385 F.2d 694, 704-6 (D.C. Cir. 1967) (footnotes omitted).
Rule 24(b)(2)(A) requires a proposed governmental intervenor to: (1) be a federal or state
governmental officer or agency; (2) administer the statute, executive order, or regulation at issue;
(3) file a timely motion; and (4) not cause undue delay or prejudice to the original parties’ rights, if
allowed to intervene. Coffey v. Comm’r, 663 F.3d 947, 951 (8th Cir. 2011).
1. government officer or agency who administers the statute at issue
The first two requirements are not in dispute. The United States, specifically the Attorney
General, is charged by statute with enforcing and administering the Voting Rights Act. The Attorney
General is given authority to bring a civil action for preventive relief, including injunctive and other
relief, whenever any person has engaged or there are reasonable grounds to believe that any person
is about to engage in any act or practice prohibited by the Voting Rights Act. 42 U.S.C. § 1973j(d);
see also 28 C.F.R. § 51.62(a) (“The Attorney General is authorized to bring civil actions for
appropriate relief against violations of the Act’s provisions, including Section 5.”). The Attorney
General may institute proceedings to enforce the voting guarantees of the Fourteenth or Fifteenth
Amendments and may seek relief under § 3(c). 42 U.S.C. §§ 1973j(d), 1973a(c).
In addition, the Attorney General and the Department of Justice are responsible for
administering § 5 of the Voting Rights Act. 28 C.F.R. Part 51 (“Procedures for the Administration
of Section 5 of the Voting Rights Act of 1965, as Amended”). Procedures governing the
administration of § 5 were implemented to “make clear the responsibilities of the Attorney General

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under Section 5 and the interpretation of the Attorney General of the responsibility imposed on
others” under § 5. 28 C.F.R. § 51.1(b). The Supreme Court has recognized that the Attorney
General has a “central role . . . in formulating and implementing” § 5 of the Voting Rights Act.
Lopez v. Monterey Cnty., 525 U.S. 266, 281 (1999) (alteration in original). When a court grants
relief under § 3(c), thereby requiring a state or political subdivision to obtain preclearance of any
voting qualification prerequisite, standard, practice, or procedure, the state or political subdivision
subject to § 3(c) may obtain preclearance by submitting the voting change to court or to the Attorney
General. 28 C.F.R. § 51.8 (“Where a jurisdiction is required under Section 3(c) to preclear its voting
changes, and it elects to submit the proposed changes to the Attorney General for preclearance, the
procedures in this part will apply.”).
2. timeliness
Courts have generally identified four factors to consider in evaluating whether a motion to
intervene is timely: (1) the length of time the intervenor knew or should have known of his interest;
(2) prejudice to the existing parties resulting from the intervenor’s failure to apply for intervention
sooner; (3) prejudice to the intervenor if his application for intervention is denied; and (4) the
existence of unusual circumstances. Trans Chem. Ltd. v. China Nat’l Machinery Imp. & Exp. Corp.,
332 F.3d 815, 822 (5th Cir. 2003); see also Utah Ass’n of Counties v. Clinton, 255 F.3d 1246, 1250
(10th Cir. 2001) (“The timeliness of a motion to intervene is assessed ‘in light of all the
circumstances, including the length of time since the applicant knew of his interest in the case,
prejudice to the existing parties, prejudice to the applicant, and the existence of any unusual
circumstances.’”).
Defendants contend that the motion to intervene is “untimely on its face” given “that it has
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been almost two years since the trial in this case.” Docket no. 877 at 6. However, “[t]he [timeliness]
analysis is contextual; absolute measures of timeliness should be ignored.” Sierra Club v. Espy, 18
F.3d 1202, 1205 (5th Cir. 1994) ; see also Stupak–Thrall v. Glickman, 226 F.3d 467, 475 (6th Cir.
2000) (“The absolute measure of time between the filing of the complaint and the motion to
intervene is one of least important of [the relevant] circumstances.”). Further, “[t]he requirement
of timeliness is not a tool of retribution to punish the tardy would-be intervenor, but rather a guard
against prejudicing the original parties by the failure to apply sooner. Federal courts should allow
intervention where no one would be hurt and greater justice could be attained.” Espy, 18 F.3d at
1205; Clinton, 255 F.3d at 1250.
Thus, it is not simply the bare length of time that must be considered, but the interest sought
to be protected and the length of time that the would-be intervenor was aware of that interest.
Defendants contend that the United States has the same interest it has always had, that it “has been
aware of and at times has even participated in this litigation,” and “[t]he claims DOJ now asserts
could have been brought and tried with the similar claims brought by the other plaintiffs in this
case.” Docket no. 877 at 6. The United States, on the other hand, argues that its interest in this
litigation concerning the 2011 plans going forward lies in the application of § 3(c). The Court agrees
with the United States.
Although the proposed Complaint in Intervention asserts claims under § 2 of the Voting
Rights Act and the Fourteenth and Fifteenth Amendments, the United States’ interest lies primarily
in the § 3(c) relief tied to those claims, and its effect on the United States’ administration of § 5.
Prior to the decision in Shelby County, there was no need for consideration of § 3(c) because the
State of Texas was automatically covered by § 5. Although the United States could have attempted
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to intervene to assert the underlying §2 and constitutional claims prior to Shelby County, it could not
have sought § 3(c) relief, and its interest in the application and administration of § 5 with regard to
Texas was clearly delineated by the § 4(b) coverage formula. Thus, before Shelby County, the
United States’ interest was focused on the § 5 litigation in the D.C. Court, and the United States
could rely on the Plaintiffs here to adequately pursue the § 2 and constitutional claims, with input
from the United States as it deemed necessary.
However, after Shelby County, circumstances changed significantly, since §3(c) became an
issue for the first time. The parties recognize the importance of the § 3(c) claims. Certain Plaintiffs
“posit that this particular VRA claim will be critical in resolving the issues in this litigation.” Docket
no. 788 at 2. Plaintiffs’ and Defendants’ briefing on § 3(c) illustrates the fact that issues concerning
the proper construction and application of §3(c) are unsettled and highly disputed. And the parties
recognize that “there is limited judicial guidance available on the application of Section 3(c).”
Docket no. 788 at 9. The United States has a direct interest in the construction and application of
§ 3(c) that was not present until after the Shelby County ruling. Therefore, the interest that the
United States seeks to protect is not the same interest that was present from the inception of the
litigation.
Further, the United States timely moved to intervene to protect its interest in the litigation
of § 3(c) issues (and their effect on the application of § 5 preclearance) once its interest became
apparent. The Supreme Court issued the decision in Shelby County on June 25, 2013. At the July
1, 2013 status conference, Plaintiffs indicated for the first time their intent to pursue relief under §
3(c). Pursuant to the Court’s order, Plaintiffs filed their motions for leave to amend pleadings on
or about July 12. The parties filed their initial advisories concerning § 3(c) on July 22, and the
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United States filed an Advisory regarding § 3(c) on July 25, 2013. The parties then filed responses
to the initial briefing on August 5. Plaintiffs and Defendants have taken very different positions
concerning almost all aspects of the proper construction and application of § 3(c). In addition,
Defendants disagree with the United States’ position concerning § 3(c), as demonstrated by
Defendants’ August 5 response to the United States’ advisory. See docket no. 842. The United
States filed this motion to intervene on August 22.1
The United States’ request comes less than two months after the decision in Shelby County,
which significantly changed the posture of this litigation and first triggered the possibility of § 3(c)
relief. In addition, the motion was filed only seventeen days after the parties completed their briefing
regarding the application of § 3(c) to this case. The motion to intervene was filed shortly after it
became clear that a significant dispute exists concerning the application of § 3(c) and before this
Court has made any substantive determinations on those disputes. See Heaton v. Monogram Credit
Card Bank, 297 F.3d 416, 423 n.9 (5th Cir. 2002) (citing Edwards v. City of Houston, 78 F.3d 983,
1000-01 (5th Cir. 1996) (lapses of as much as five months not unreasonable)(citing cases)).
Although other Plaintiffs are pursuing § 3(c) relief, the United States is entitled to participate
by asserting its own claims, rather than having these important issues litigated to its exclusion. “To
deny intervention would deprive [the United States] of the opportunity to exercise ‘the legal rights

1

Although some Plaintiffs here are attempting to pursue § 3(c) relief in the D.C. Court, the
United States has stated in the D.C. Court that this Court would be the better venue to address § 3(c)
relief. See United States Response to Intervenors’ Motion for Leave, Texas v. United States, No.
1:11-cv-1303 (D.D.C. Aug. 31, 2012) (docket no. 248). This position is based on the statutory text
of §3(c), which permits relief “in any proceeding instituted by the Attorney General or an aggrieved
person under any statute to enforce the voting guarantees of the fourteenth or fifteenth amendment
in any State . . . .” 42 U.S.C. § 1973a(c). The D.C. Court proceeding was instituted by the State of
Texas.
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associated with formal intervention, namely the briefing of issues, presentation of evidence, and
ability to appeal.’” Heaton, 297 F.3d at 424; see also id. at 424 (the stare decisis effect of an adverse
judgment constitutes a sufficient impairment to compel intervention). Rule 24(b)(2)(A), unlike Rule
24(a),2 contains no express requirement that the proposed intervenor’s interests not be adequately
represented by the existing parties, though this factor may be considered by the Court in exercising
its discretion. Although at this time the claims asserted by the United States and the existing
Plaintiffs are the same, there is no guarantee that their positions will align throughout this litigation.
This has been demonstrated by the D.C. Court litigation, in which the Department of Justice took
different positions from the Plaintiffs on some issues. Thus, the United States’ interests are not
adequately represented and the United States may be prejudiced by the denial of intervention. See
Heaton, 297 F.3d at 425 (noting that, although government agency and private party’s interests
appeared to share common ground, they may diverge in the future given that the government must
represent the public interest, and this was enough to show lack of adequate representation).
In addition, the United States’ interest is not identical to Plaintiffs’ interest. Plaintiffs are
voters who seek to have the Court order Texas subject to preclearance under § 5 based on a finding
of intentional discrimination. Thus, they are seeking to protect their interests as voters and members
of minority groups. The United States, in contrast, will be responsible, along with any court who
orders § 3(c) relief, for administering § 5 preclearance ordered under § 3(c). With the demise of §

2

Rule 24(a) provides, “Intervention of Right. On timely motion, the court must permit
anyone to intervene who: (1) is given an unconditional right to intervene by a federal statute; or (2)
claims an interest relating to the property or transaction that is the subject of the action, and is so
situated that disposing of the action may as a practical matter impair or impede the movant’s ability
to protect its interest, unless existing parties adequately represent that interest.” FED. R. CIV. P.
24(a).
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4(b), the construction and application of § 3(c) will have broad consequences for the United States
and its role in administering § 5 preclearance going forward. The United States is entitled to protect
that interest by being a party in this litigation construing § 3(c), rather than having the issues decided
to its exclusion. This is the type of interest for which Rule 24(b)(2)(A) allows intervention.
Last, the Court finds no prejudice to the existing parties from the United States’ failure to
apply for intervention sooner. As noted, the United States quickly moved to intervene once its
interest in § 3(c) became apparent. Because the Court is permitting Plaintiffs to amend their
complaints and assert requests for relief under § 3(c), as well as reopening the record and setting a
new timetable for all parties to marshal evidence and conducting hearings related to the 2011 plans
and related § 3(c) relief, the existing parties will suffer no prejudice based on the timing of the
motion to intervene. Accordingly, the Court finds that the motion to intervene is timely.
3. undue delay or prejudice
The Court next considers whether the intervention itself will cause undue delay or prejudice
to adjudication of the original parties’ rights. The United States asserts that intervention will not
cause undue delay or prejudice, as this litigation has entered a distinct new phase and this Court has
not made any substantive determinations regarding § 3(c) or rendered a final judgment on the 2011
plan claims. In addition, the United States asserts that it “does not seek to relitigate the trial that has
already been conducted,” but seeks “to present evidence in any evidentiary hearing conducted
pursuant to a request for Section 3(c) relief.”
Defendants assert that intervention will cause undue delay and prejudice to the existing
parties. Defendants note that the proposed Complaint in Intervention includes claims for violations
of the Fifteenth Amendment, yet all Fifteenth Amendment claims have previously been adjudicated.
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Defendants further contend that “[i]ntervention by DOJ raises the very real threat of prejudice to the
parties in the form of additional delay” because “[n]ew claims from a new party will unnecessarily
complicate the litigation and require the parties to divert time and resources away from expeditiously
resolving the litigation in order to preserve election deadlines.” Docket no. 877 at 9.
While any intervention could potentially cause delay, Rule 24(b) requires the Court to
consider whether the intervention will cause “undue delay” or “prejudice the adjudication of the
original parties’ rights.” FED. R. CIV. P. 24(b). “Undue” means not normal or appropriate. Appleton
v. Comm’r of Internal Revenue, 430 F. App’x 135, 138 (3d Cir. 2011) (citing Webster’s II New
Riverside University Dictionary 1259 (1988)). “[A]ny introduction of an intervener in a case will
necessitate its being permitted to actively participate, which will inevitably cause some ‘delay.’”
Appleton, 430 F. App’x at 138. However, there is no indication that allowing intervention by the
United States would cause undue delay.
To the extent Defendants note that the proposed Complaint in Intervention asserts claims
under the Fifteenth Amendment, such a claim would not cause undue delay given that the existing
Plaintiffs have also pursued such claims and the Court has already made a ruling on the Fifteenth
Amendment claims. See docket no. 275. That same ruling can be applied to the new Fifteenth
Amendment claims asserted by the United States, resulting in no undue delay, yet preserving the
issue for appeal. Defendants’ other argument governing the existence of a new party is true of any
intervention, and fails to demonstrate how the intervention would cause undue delay. Given that the
Court is already reopening the record and allowing Plaintiffs to present additional evidence, any
submission of evidence by the United States at the same time would not cause undue delay. Nor
have Defendants demonstrated that any prejudice to the adjudication of their rights would result.
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Accordingly, the Court finds that permitting intervention would not cause undue delay or prejudice
to the existing parties.
Conclusion
The Court finds that the United States’ Motion to Intervene (docket no. 871) has merit and
should be GRANTED.
SIGNED on this 24th day of September, 2013.

__/s/_________________________________
ORLANDO L. GARCIA
UNITED STATES DISTRICT JUDGE
__/s/________________________________
XAVIER RODRIGUEZ
UNITED STATES DISTRICT JUDGE

JERRY E. SMITH, Circuit Judge, dissenting:
There is nothing to be gained from permitting intervention by the United States
at this stage of the proceedings, and there is substantial chance that the presence of
the U.S. will interfere with “the just, speedy, and inexpensive determination”1 of this
matter. The motion does not meet the requirements of the rule, and even if it did, this
court should exercise its almost unlimited discretion to deny intervention.
I can understand the desire of my conscientious colleagues to make sure that
every party with a putative interest is adequately heard and that every relevant point
of law and pertinent fact is considered. I also appreciate that some may view the

1

FED. R. CIV. P. 1.
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United States as the “800-pound gorilla” that cannot be turned away. But the interests
of justice, including the worthy goals my colleagues pursue, are being, and can be, fully
served without the formal intervention of the United States. I respectfully dissent.

I. The request to intervene is not “timely” as required.
The rule requires that intervention be timely. This motion, to the contrary, is
more than two years late.
On the question of timeliness, the government’s motion is doomed by the fact
that in October 2011, it asserted a stake in these proceedings by filing a “Statement
of Interest of the United States Under Section 5 of the Voting Rights Act of 1965.”
There, the government claimed that “[t]his case” (as described separately from the
three-judge proceeding in the District of Columbia). The government further alleged
that, as it stood in 2011, this case
presents important questions regarding Section 5 . . . . The Attorney
General has primary responsibility for enforcing this preclearance
requirement . . . . Moreover, the United States has a particular interest
in the redistricting plans at issue in this case . . . . The Court will need
to ensure that any plans it adopts comply with both Section 2 and
Section 5.
Despite that strong statement, the United States made no effort to intervene.
Nothing relevant has changed in the intervening two years. The United States
still claims it has a duty to enforce the Act. In its 2011 Statement of Interest, it presented its “position that both the Congressional and State House plans were drawn
with discriminatory purpose.” Now, it seeks to impose a preclearance requirement

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based on that same claim of discriminatory intent. The fact that the theory is now pursued through Section 3(c) instead of the now-defunct Section 4(b) is irrelevant. The
alleged interest of the U.S. is the same: to block implementation of legislatively
enacted redistricting plans by showing discriminatory purpose.
The government forfeited its claim to any permissive intervention when it failed
to request intervention in 2011. It made the same contentions then as now: that it is
obliged to enforce the Act, that that enforcement was affected by the proceedings that
began in 2011, and that preclearance should be required because of biased intent
underlying the 2011 plans. Nothing has changed, and nothing is new. The United
States is hopelessly tardy and therefore does not meet the requirement of Rule 24(b)
that intervention may be granted only “[o]n timely motion.” Whether in terms of forfeiture, waiver, untimeliness, or even laches,2 the United States has knowingly forgone
the opportunity to participate in these proceedings as a formal party.

II. No reason is shown why intervention would help.
That should end the matter: The plain text of the rule forbids untimely intervention. But even if this motion were “timely,” we should exercise our extremely broad
discretion to deny the intervention. “[I]t is wholly discretionary with the court whether

2

The doctrine of laches applies in Voting Rights Act cases pending before three-judge district court panels. Lopez v. Hale Cnty., Tex., 707 F. Supp. 547, 550 (N.D. Tex. 1992) (three-judge
Voting Rights panel), aff’d mem., 506 U.S. 1042 (1993).
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to allow intervention under Rule 24(b).”3 “[T]he court’s discretion is equally applicable
. . . when a governmental agency or officer seeks to intervene.”4 Therefore, neither a
governmental actor in general, nor the United States or the Attorney General in
particular, has a special claim under the rule or applicable caselaw.5
Even aside from tardiness, U.S. intervention impedes the proceedings and is
totally unnecessary. “Additional parties always take additional time that may result
in delay and that thus may support the denial of intervention.”6

“The decision

regarding whether to grant permissive intervention is always subject to the inherently
discretionary considerations of equity and judicial economy.”7
This litigation is being ably prosecuted by private attorneys representing individuals and organizations almost too numerous to list. The attorneys are expert in all
aspects of redistricting and constitutional law and have had experience, including
extensive redistricting litigation in Texas, that extends back several decades. The
United States cannot point to any aspect of this litigation in which, in the past twoplus years, the attorneys have not superbly presented the claims of minority citizens

3

7C CHARLES A. WRIGHT, ARTHUR R. MILLER & MARY K. KANE, FEDERAL PRACTICE AND
PROCEDURE § 1913, at 476 (3d ed. 2007).
4

Id. at 478.

5

This is to be distinguished from the “statutory right of the United States to intervene in any
case in which the constitutionality of a federal statute affecting the public interest is questioned.”
6 JAMES W. MOORE ET AL., MOORE’S FEDERAL PRACTICE § 24.02[2][a], at 24-9 (3d ed. 2013)
(emphasis added). There is no such claim here.
6

7C WRIGHT ET AL., supra, § 1913, at 481.

7

6 MOORE, supra, § 24.10[1], at 24-63.
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and organizations to vindication of their rights under the Voting Rights Act and the
Constitution.
Nor does the U.S. even try to suggest ways in which it might present claims differently from the manner in which they will be pursued during the remainder of this
process. The two judges in the majority admit that “at this time the claims asserted
by the United States and the existing Plaintiffs are the same.” Moreover, the U.S. has
pointed to no additional or different evidence that it would present after intervention.
It is well settled that
[i]ntervention will be denied if the movant will not make any unique contribution to the evidence presented at trial. If a potential intervenor will
essentially repeat the same sort of testimony given by existing parties,
intervention is counterproductive because it will only clutter and prolong
the litigation unnecessarily.”[8]
“In deciding on a motion for permissive intervention, a court will consider
whether the movant’s input is likely to make a significant and useful contribution to
the development of the underlying factual and legal issues or, alternatively, is likely
to be counterproductive.”9 Importantly, “[c]ourts are understandably reluctant to grant
permissive intervention to a movant when interests are already fully represented by
one of the existing parties.”10
In this regard, my majority colleagues make, out of whole cloth, an argument for

8

Id. § 24.10[2][b], at 24-67.

9

Id. at 24-66 (citing LULAC v. Clements, 884 F.2d 185, 189 (5th Cir. 1989)).

10

Id. § 24.10[2][c], at 24-68.
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intervention that the United States does not even suggest. The majority says that
“[t]he United States . . . will be responsible . . . for administering § 5 preclearance
ordered under § 3(c) . . . . The United States is entitled to protect that interest by being
a party in this litigation construing § 3(c), rather than having the issues decided to its
exclusion.” The government, to the contrary, does not even remotely hint that the
issues could be decided incorrectly or inadequately if it is not allowed to intervene. To
the same effect, the majority says that “there is no guarantee that [the positions of the
United States and the existing plaintiffs] will align throughout this litigation.” The
government makes no such assertion of misalignment. In short, the majority makes
arguments for the U.S. that the government, which has the burden on this motion, has
not even advanced.

III. There is a middle ground by allowing amicus curiae status.
Short of opening the gates to allow the United States to appear as a formal
party, this court could allow it to participate as amicus curiae. “If the court determines
to deny intervention altogether, it is common practice to allow the applicant to file a
brief amicus curiae, but even this sometimes is denied.”11
Amicus status allows the movant to present legal argument, and, in some
cases, to call and cross-examine witnesses. Participation as an amicus
curiae, rather than as a party, is appropriate if a person cares about the
legal principles that apply to a dispute but has no personal, legally protectable interest in the litigation.

11

7C WRIGHT ET AL., supra, § 1913, at 495-97.
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[T]he opportunity to participate effectively in the action as an amicus
curiae may mitigate against a movant’s ability to demonstrate inadequate representation of its interests.[12]
The majority, however, does not even mention this alternate middle ground or discuss
why amicus status would be insufficient if, as the majority claims, the United States
has an important point of view that must be heard.13

IV. Summary.
Again with appreciation for my colleagues’ careful consideration of this significant motion, I respectfully urge that the request of the United States to intervene
should be denied. It does not meet the rule’s mandatory timeliness requirement. And
even if it had been filed timely, the United States, which has the burden on its motion,
has shown no reason why or how the administration of justice would be expedited or
improved by its participation as a party.
To the contrary, adding yet another party only imposes an unnecessary burden
on these proceedings. Even if some input from the United States were deemed potentially helpful, the court should explore the safer and less disruptive measure of amicus
curiae status.
There is a comical old saying that “I’m from the Government, and I’m here to

12

6 MOORE ET AL., supra, § 24.23[2], at 24-103.

13

Another possibility is that, instead of granting unfettered intervention, a court “may specify
the conditions on which it will allow the applicant to become a party.” 7C WRIGHT ET AL., supra,
§ 1913, at 494-95; accord 6 MOORE ET AL. § 24.23[1].
17

help.” Although there are many instances in which participation by the United States
is required, necessary, or helpful, this is not one of those times. I respectfully dissent
from the well-meaning decision to grant intervention.

__/s/_________________________________
JERRY E. SMITH
UNITED STATES CIRCUIT JUDGE

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