Ass'n for Educ. Fairness v. Montgomery Cnty. Bd. of Educ.

88 F.4th 495

ASSOCIATION FOR EDUCATION FAIRNESS, Plaintiff - Appellant, v. MONTGOMERY COUNTY BOARD OF EDUCATION; Dr. Monifa B. McKnight, Defendants - Appellees,andCasa, Inc.; Montgomery County Branch of the NAACP; Asian American Youth Leadership Empowermentand Development; Montgomery County Progressive Asian American Network, Proposed Intervenors.

No. 23-1068

United States Court of Appeals, Fourth Circuit

Argued: September 20, 2023

Decided: December 8, 2023

On Appeal from the United States District Court for the District of Maryland, at Greenbelt. Paula Xinis, District Judge. (8:20-cv-02540-PX)

ARGUED: Michael Skocpol, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INCORPORATED, Washington, D.C., for Intervenors. Christopher M. Kieser, PACIFIC LEGAL FOUNDATION, Sacramento, California, for Appellant. Nathaniel A.G. Zelinsky, HOGAN LOVELLS US LLP, Washington, D.C., for Appellees. ON BRIEF: Joshua P. Thompson, Erin E. Wilcox, Sacramento, California, Glenn E. Roper, PACIFIC LEGAL FOUNDATION, Highlands Ranch, Colorado, for Appellant. Jo-Ann Tamila Sagar, Washington, D.C., Steven F. Barley, HOGAN LOVELLS US LLP, Baltimore, Maryland, for Appellees. Leslie E. John, Elizabeth V. Wingfield, Kayla R. Martin, Philadelphia, Pennsylvania, Maraya N. Pratt, BALLARD SPAHR LLP, Baltimore, Maryland; Niyati Shah, Shalaka Phadnis, ASIAN AMERICANS ADVANCING JUSTICE-AAJC, Washington, D.C.; Michaele N. Turnage Young, Jin Hee Lee, Washington, D.C., Allison Scharfstein, NAACP LEGAL DEFENSE & EDUCATIONAL FUND, INC., New York, New York; Francisca D. Fajana, LATINOJUSTICE PRLDEF, New York, New York, for Intervenors.

Before RICHARDSON and HEYTENS, Circuit Judges, and FLOYD, Senior Circuit Judge.

Motion denied without prejudice by published opinion. Judge Heytens wrote the opinion, in which Judge Richardson and Judge Floyd joined.

TOBY HEYTENS, Circuit Judge:

A coalition of civil rights organizations asks to intervene in an appeal from a district court judgment granting full relief to the side the organizations seek to join. We deny the motion without prejudice.

I.

This litigation stems from a school district's decision to change its process for selecting students for four magnet schools. In 2020, plaintiff Association for Education Fairness sued the Montgomery County Board of Education and its superintendent (collectively, the Board), claiming the Board's then-new admissions policy unconstitutionally discriminated against Asian American students. The Board filed two motions to dismiss, which defended the policy on the merits and argued the case was moot because the Board had changed its admissions process again since the Association filed suit. The district court denied those motions, and the Association filed an amended complaint.

Soon after, "a multi-racial coalition of five organizations that serve thousands of Asian American, Black, and Latino students and families across Montgomery County" moved to intervene as defendants. Mot. to Intervene 3, D. Ct. ECF 69. Viewing "the crux of" the dispute over intervention as involving "the propriety of intervention if the case proceed[ed] to discovery," the district court "defer[red] resolution of" the organizations' motion "until after it decide[d] whether" to grant the Board's forthcoming motion to dismiss the amended complaint. Letter Order 1, D. Ct. ECF 84. In the meantime, the court said the organizations could "participate as amici" by filing "an opening pleading in support of dismissing the Amended Complaint, as well as a reply pleading" on the same schedule as the Board. Id. at 1-2.

The Board filed a third motion to dismiss, and the organizations filed a brief in support of that motion. The Board argued the challenged policy was subject to (and passed) rational basis review because the policy was race neutral and the amended complaint did not plausibly allege it was enacted with a discriminatory purpose. The organizations' brief echoed those arguments, but also offered another: that rational basis review applied because the amended complaint did not plausibly allege the policy had a disparate impact on Asian American students.

The district court granted the motion to dismiss on two alternative grounds. The court agreed with the Board that the complaint contained "no facts [that] give rise to the inference that the" challenged policy was motivated by discriminatory intent. See Association for Educ. Fairness v. Montgomery Cnty. Bd. of Educ., 617 F. Supp. 3d 358, 368 (D. Md. 2022). The court also accepted the argument—raised only by the organizations as amici—that the amended complaint likewise failed as a matter of law because it did "not aver plausibly that the" challenged policy "disparately impacts Asian American students." Id. Having dismissed the Association's complaint, the district court denied the organizations' motion to intervene "as moot." Id. at 373.

After unsuccessfully moving to alter or amend the judgment under Federal Rule of Civil Procedure 60(b), the Association filed a notice of appeal. All but one of the organizations have sought leave to intervene in that appeal.

II.

"No statute or rule provides a general standard to apply in deciding whether intervention on appeal should be allowed." Cameron v. EMW Women's Surgical Ctr., P.S.C., 595 U.S. 267, 142 S. Ct. 1002, 1010, 212 L.Ed.2d 114 (2022); see 4th Cir. R. 12(e) (referencing intervention motions but providing no standard for granting them). Although the Federal Rules of Civil Procedure contain detailed provisions governing intervention in civil cases in federal district court, see Fed. R. Civ. P. 24, those rules do not apply in this Court, see Fed. R. Civ. P. 1; Automobile Workers v. Scofield, 382 U.S. 205, 217 n.10, 86 S.Ct. 373, 15 L.Ed.2d 272 (1965). Nor have the parties brought to our attention any statute or rule governing intervention under these circumstances. Cf. Automobile Workers, 382 U.S. at 216 n.9, 86 S.Ct. 373 (citing statute addressing intervention in certain agency appeals). For that reason, resolution of the organizations' motion is committed to our discretion. Accord Cameron, 142 S. Ct. at 1011 (describing a motion to intervene on appeal as "committed to the discretion of the court before which intervention is sought").

That does not mean we lack all guidance. In considering motions to intervene on appeal, the Supreme Court has told us to consult "the policies underlying intervention in the district courts." Cameron, 142 S. Ct. at 1010 (quotation marks omitted). We thus consider a non-exhaustive list of factors—the timeliness of the organizations' request, the interests the organizations seek to represent, the extent to which the existing parties adequately represent those interests, and the effect on the organizations and the current parties of granting or denying intervention. See id. at 1010-14.

To begin, we reject any suggestion the organizations' efforts to intervene are untimely or represent an impermissible end-run around a deferential standard of review. Neither the Association nor the Board suggests there has been undue delay in connection with the appeal itself. Instead, the existing parties suggest the organizations should have sought review of the district court's treatment of their intervention request sooner or in a different way, and that the organizations' failure to do so renders the current motion improper.

We take all involved to agree on two points. First, those seeking to force their way into lawsuits between others generally must do so while the case is pending before a trial court rather than waiting to do so on appeal. See, e.g., Associated Builders & Contractors, Inc. v. Herman, 166 F.3d 1248, 1257 (D.C. Cir. 1999); accord Wright & Miller, 7C Fed. Prac. & Proc. Civ. § 1916 (3d ed. 2023) ("There is considerable reluctance . . . to allow intervention after the action has gone to judgment . . . [and] even more reason to deny an application to intervene made while an appeal is pending."). Second, because a district court's decision denying intervention is reviewed only for an abuse of discretion, see Cawthorn v. Amalfi, 35 F.4th 245, 253 (4th Cir. 2022), appellate courts must police against attempts to evade that deferential standard by declining to seek review of an adverse district court decision and then filing a fresh motion to intervene on appeal. See, e.g., Richardson v. Flores, 979 F.3d 1102, 1105 (5th Cir. 2020); Hutchinson v. Pfeil, 211 F.3d 515, 519 (10th Cir. 2000).

Neither guardrail is triggered here. The organizations sought intervention in the district court, and they did not forgo any meaningful opportunity to obtain review of an adverse district court ruling.

True, a decision denying intervention is "a final judgment that is appealable," Bridges v. Department of Md. State Police, 441 F.3d 197, 207 (4th Cir. 2006), and the organizations never appealed. But the district court's first order addressing intervention did not deny the organizations' motion. Instead, the court deferred resolution of the intervention question pending its ruling on the Board's upcoming motion to dismiss the amended complaint. That decision not to decide was "patently non-final," In re Wallace & Gale Co., 72 F.3d 21, 24 (4th Cir. 1995), and the organizations had no way to appeal it.

Nor did the organizations have any reason to appeal the district court's ultimate denial of their intervention motion. That decision was, in principle, an appealable order. See Bridges, 441 F.3d at 207. But it is at least uncertain whether there was anything for the organizations to appeal at that point. The district court did not deny the organizations' intervention motion because it was unwarranted under Federal Rule of Civil Procedure 24. Instead, the court recognized the intervention question had been rendered academic by its decision to enter a final judgment for the parties on whose side the organizations sought to intervene. And because the organizations were in no way "aggrieved" by the district court's decision to...