USCA4 Appeal: 23-1068 Doc: 52 Filed: 12/08/2023 Pg: 1 of 12

PUBLISHED

UNITED STATES COURT OF APPEALS FOR THE FOURTH CIRCUIT

No. 23-1068

ASSOCIATION FOR EDUCATION FAIRNESS,

Plaintiff – Appellant,

v.

MONTGOMERY COUNTY BOARD OF EDUCATION; DR. MONIFA B. MCKNIGHT,

Defendants – Appellees,

and

CASA, INC.; MONTGOMERY COUNTY BRANCH OF THE NAACP; ASIAN AMERICAN YOUTH LEADERSHIP EMPOWERMENT AND DEVELOPMENT; MONTGOMERY COUNTY PROGRESSIVE ASIAN AMERICAN NETWORK

Proposed Intervenors.

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: September 20, 2023 Decided: December 8, 2023

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. USCA4 Appeal: 23-1068 Doc: 52 Filed: 12/08/2023 Pg: 2 of 12

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.

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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

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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.,

, 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.”

Having dismissed the Association’s complaint, the district court

denied the organizations’ motion to intervene “as moot.”

.

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.

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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.,

, 1010 (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,

, 217 n.10 (1965). Nor have the parties

brought to our attention any statute or rule governing intervention under these

circumstances. Cf. Automobile Workers,

n.9 (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.

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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,

(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,

, 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,

(5th Cir. 2020); Hutchinson v. Pfeil,

(10th Cir. 2000).

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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,

, 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.,

(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 dismiss the Association’s lawsuit, they had no reason to seek appellate review

at that point. Deposit Guar. Nat’l Bank v. Roper,

(1980); accord Wright

& Miller, 15A Fed. Prac. & Proc. Juris. § 3902 (describing the general rule that no appeal

may be taken from a final judgment unless the appealing party “can show an adverse effect

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of the judgment”). Whether the organizations should be granted party status did not arise

again until the Association launched a new proceeding by appealing the district court’s

judgment. We thus reject the argument that the organizations delayed unduly in seeking to

bring the intervention issue before this Court.

We turn to the other factors. No one denies the weight of the legal interests the

organizations seek to protect. See Allen v. Wright,

(1984) (describing a

child’s “diminished ability to receive an education in a racially integrated school” as “not

only judicially cognizable but . . . one of the most serious injuries recognized in our legal

system”). For that reason, our resolution of this motion comes down to this: a prediction

about whether the existing parties will adequately protect the organizations’ interests and

an assessment of the prejudice to those parties and the organizations from granting or

denying intervention. The question is a close one, and our decision rests heavily on the

specific factual situation before us. That said, we deny the organizations’ motion without

prejudice.

The sole question on the merits in this appeal is whether to affirm or reverse the

district court’s decision granting the Board’s motion to dismiss for failure to state a claim.

In this procedural posture, there are no facts in the record nor any chance to add facts—

much less disagree about which facts to add. Cf. Grutter v. Bollinger,

(6th Cir. 1999) (holding district court erred in denying intervention where proposed

intervenors raised questions about what evidence the existing defendants were likely to

present). In addition, because the side on which the organizations seek to intervene won a

complete victory in the district court, there is no prospect of disagreement about what

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bottom-line result to seek on appeal. Cf. Feller v. Brock,

(4th Cir. 1986)

(reversing district court’s refusal to permit intervention as of right when party whose side

intervenors sought to join planned to argue against the intervenors’ position on a contested

issue). Both the organizations and the Board seek the same thing from this Court: a decision

ending in the word “affirmed.” Cf. Virginia v. Westinghouse Elec. Corp.,

(4th Cir. 1976) (stating that, even where a proposed intervenor’s “burden of showing

an inadequacy of representation is minimal,” the case for intervention is far weaker where

the proposed intervenor “seeks no relief other than that which [an existing party] seeks for

itself ”).

Of course, there are often multiple roads to a destination, and the organizations’

strongest argument is that—absent intervention—the Board’s litigating choices could place

obstacles along one of those paths. Consider how someone seeking affirmance might argue

this case. It is common ground that the path is far rockier if the challenged admissions

policy is subject to strict scrutiny. Because the policy is facially race neutral, there are at

least two arguments that could be made to avoid that exacting standard: lack of

discriminatory intent and lack of disparate impact. See, e.g., Coalition for TJ v. Fairfax

Cnty. Sch. Bd.,

, 879, 882 (4th Cir. 2023). When briefing its motions to

dismiss, however, the Board relied solely on lack of discriminatory intent and refrained

from making a disparate impact argument. Despite that, the district court decided the Board

won for both reasons and relied on the organizations’ framing of the second. The

organizations say what happened before is the best predictor of what may happen again,

and that here the Board’s past actions—and its interest in not casting doubt on its own past

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conduct or limiting its future flexibility—suggest the Board cannot be trusted to defend the

district court’s disparate impact holding on appeal.

Without any other developments, making a prediction about whether the Board is

likely to adequately protect the organizations’ interests in this appeal could have required

us to delve deep into the case’s procedural history, as well as principles of appellate review

and procedure. For example, we may have needed to assess: (1) why the Board made no

disparate impact argument in its motion to dismiss the amended complaint; (2) how the

Board framed its response to the Association’s motion to alter or amend the district court’s

judgment; (3) whether and to what extent external considerations might be expected to

limit the Board’s vigor in pressing all available arguments; (4) what consequences would

follow if the Board failed to defend the district court’s disparate impact holding on appeal;

or (5) whether the Board’s status as a government entity requires the organizations to make

a heightened showing of inadequacy to intervene on appeal, cf. Stuart v. Huff,

(4th Cir. 2013) (requiring such a showing in district court).

But we need not answer those questions today. See PDK Lab’ys Inc. v. Drug Enf’t

Admin.,

(D.C. Cir. 2004) (Roberts, J., concurring in part and concurring

in judgment) (“[I]f it is not necessary to decide more, it is necessary not to decide more.”).

The Board has now unambiguously represented to this Court—in briefing and at oral

argument—that it intends to defend the district court’s disparate impact holding on appeal.

We take the Board at its word and emphasize that our decision to deny the current motion

is based on that representation.

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Once the Board, as appellee, presents a disparate impact argument in its brief, the

district court’s conclusion on that point will be before us and no questions of forfeiture will

arise. Cf. Alvarez v. Lynch,

(4th Cir. 2016) (stating an appellee’s

“outright failure to join in the adversarial process would ordinarily result in” forfeiture of

any arguments not made). And even if the Board does not present the disparate impact

argument with the vigor or in the same way the organizations would, appellate courts are

“not hidebound by the precise arguments of counsel.” United States v. Sineneng-Smith,

(2020).

Given that, it is hard to see what would change materially if we granted the current

motion. If permitted to intervene in this Court, the organizations would be entitled to do

two things: seek leave to file a separate brief and attempt to participate in oral argument.

See 4th Cir. R. 12(e) (“Intervenors are required to join in the brief for the side which they

support unless leave to file a separate brief is granted by the Court.”). But the organizations

may do the same as amici, just as they did in the district court. See Fed. R. App. P. 29(a)(2)

& (8); see McHenry v. Commissioner,

(4th Cir. 2012) (“Numerous cases

support the proposition that allowing a proposed intervenor to file an amicus brief is an

adequate alternative to permissive intervention.”); Wright & Miller, 7C Fed. Prac. & Proc.

Civ. § 1913 (3d ed. 2023) (discussing “common practice [of ] allow[ing] the applicant to

file a brief amicus curiae”).

When asked what harm they will suffer absent intervention if the Board fulfills its

promise to make a disparate impact argument, the organizations responded that being

granted intervention before this Court would ensure they also are parties for any future

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proceedings before the Supreme Court. See Oral Arg. 12:44–13:40; see also Sup. Ct. R.

12(6) (stating that, subject to an exception not applicable here, “[a]ll parties to the

proceedings in the court whose judgment is sought to be reviewed are deemed parties

entitled to file documents in this Court”). But, here too, the Board represents it would

continue to defend the district court’s decision on both grounds in any further proceedings.

See Oral Arg. 22:52–23:20. Because of that, we need not decide whether—and if so,

when—the ability to participate in future proceedings bears on appellate intervention

questions. See, e.g., Fed. R. Civ. P. 24 (outlining standards for intervention in civil cases

without mentioning anything about the ability to participate in later appeals); Sutphen Ests.

v. United States,

(1951) (finding no abuse of discretion in denying

permissive intervention where “the claim of injury to [the movant] is too speculative and

too contingent on unknown factors”); Day v. Apoliona,

, 965–66 (9th Cir.

2007) (granting intervention on appeal where “none of the current parties will file a petition

for rehearing or for rehearing en banc”).

* * *

The motion to intervene on appeal is denied without prejudice. The Clerk is directed

to reinstate the briefing schedule.

SO ORDERED

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