United States Court of Appeals For the First Circuit
No. 20-1748
VICTIM RIGHTS LAW CENTER; EQUAL RIGHTS ADVOCATES; LEGAL VOICE; CHICAGO ALLIANCE AGAINST SEXUAL EXPLOITATION; JANE DOE, an individual by and through her mother and next friend Melissa White; ANNE DOE; SOBIA DOE; SUSAN DOE; JILL DOE; NANCY DOE; LISA DOE,
Plaintiffs, Appellees,
v.
PHIL ROSENFELT, in his official capacity as Acting Secretary of Education,* SUZANNE GOLDBERG, in her official capacity as Acting Assistant Secretary for Civil Rights,** UNITED STATES DEPARTMENT OF EDUCATION,
Defendants, Appellees.
FOUNDATION FOR INDIVIDUAL RIGHTS IN EDUCATION, INDEPENDENT WOMEN'S LAW CENTER, SPEECH FIRST, INC.,
Putative Intervenors, Appellants.
APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF MASSACHUSETTS
[Hon. William G. Young, U.S. District Judge]
* Pursuant to Fed. R. App. P. 43(c)(2), Acting Secretary of Education Phil Rosenfelt has been substituted for former Secretary of Education Elisabeth DeVos.
**Pursuant to Fed. R. App. P. 43(c)(2), Acting Assistant Secretary for Civil Rights Suzanne Goldberg has been substituted for former Assistant Secretary for Civil Rights Kenneth Marcus. Before
Lynch and Selya, Circuit Judges, and Laplante,*** District Judge.
Alexa R. Baltes, with whom Charles J. Cooper, Brian W. Barnes, Cameron T. Norris, Tiffany H. Bates, Patrick Strawbridge, Cooper & Kirk, PLLC, and Consovoy McCarthy PLLC were on brief, for appellants. Michael F. Qian, with whom Natalie A. Fleming Nolen, David A. Newman, James R. Sigel, Emily Martin, Neena Chaudhry, Sunu Chandy, Shiwali G. Patel, Elizabeth Tang, Diane L. Rosenfeld, and Morrison & Foerster LLP were on brief, for appellees.
February 18, 2021
*** Of the District of New Hampshire, sitting by designation. - 2 - Laplante, District Judge. The question in this
interlocutory appeal is whether the district court abused its
discretion in denying both intervention as of right and permissive
intervention to the Foundation for Individual Rights in Education,
Independent Women's Law Center, and Speech First, Inc.
(collectively, the "movants" or "movant-intervenors") under
Federal Rule of Civil Procedure 24(a)(2) and (b)(1)(B).
The suit underlying the appeal involves a challenge to
the U.S. Department of Education's recent promulgation of a
regulation that sets the standard for actionable sexual harassment
for administrative enforcement of Title IX of the Education
Amendments of 1972, 20 U.S.C. § 1681(a), and provides additional
procedural protections to students accused of sexual harassment.
The plaintiffs are appellees here defending the district court's
decision. Acting Secretary Rosenfelt, Acting Assistant Secretary
Goldberg, and the Department of Education (collectively, "the
government") are the named defendants in the suit. The government
has taken no position on the issue of intervention and did not
participate in either the briefing or the oral argument in this
appeal.
The Foundation for Individual Rights in Education,
Independent Women's Law Center, and Speech First, Inc. moved to
intervene for the purpose of arguing that the First Amendment
requires a standard for actionable "sexual harassment" that is at
- 3 - least as narrow as the definition provided in the new regulation
and that the Fifth Amendment's Due Process Clause mandates the
additional procedural protections. The district court denied the
motion in a summary order, finding that the movant-intervenors had
failed to show that the government would not adequately protect
their rights. On appeal, the movant-intervenors contend that the
district court abused its discretion by denying the motion to
intervene. We affirm.
I. Applicable Standard of Review
A district court's denial of a motion to intervene as of
right under Rule 24(a) is reviewed "through an abuse-of-discretion
lens." T-Mobile Ne. LLC v. Town of Barnstable, 969 F.3d 33, 38
(1st Cir. 2020). The same "lens" is used for reviewing the denial
of a motion for permissive intervention under Rule 24(b). Id.
But "the abuse-of-discretion standard is not a monolith: within
it, abstract legal rulings are scrutinized de novo, factual
findings are assayed for clear error, and the degree of deference
afforded to issues of law application waxes or wanes depending on
the particular circumstances." Id.
II. Background
The regulation challenged by the plaintiffs is entitled
"Nondiscrimination on the Basis of Sex in Education Programs or
Activities Receiving Federal Financial Assistance," 85 Fed. Reg.
30,026 (May 19, 2020) (codified at 34 C.F.R. § 106) (the "Rule").
- 4 - It sets standards for how educational institutions that receive
federal financial assistance must handle student allegations of
sexual harassment. As relevant here, the Rule defines the standard
for "sexual harassment" to be used in administrative enforcement
of Title IX to be generally the same as the standard set by Davis
v. Monroe County Board of Education, 526 U.S. 629, 651 (1999), for
private Title IX suits. See 34 C.F.R. § 106.30(a)(2); 85 Fed.
Reg. at 30,033 (explaining the reasoning for adopting the Davis
standard). The Rule also requires that schools provide additional
procedural protections to students accused of sexual harassment.
85 Fed. Reg. at 30,046-55.
In June 2020, the plaintiffs filed this suit challenging
various portions of the Rule and its promulgation under the
Administrative Procedure Act ("APA") and the Fifth Amendment's
Equal Protection guarantees.1 They seek an injunction declaring
the Rule invalid and enjoining its implementation.2 The government
1 The plaintiffs' Equal Protection claim is premised on allegations that former Secretary of Education DeVos and other members of the Department of Education held discriminatory and stereotypical beliefs about women and accordingly singled out women for excessively onerous procedures and standards in establishing sexual harassment.
2 Similar suits about the Rule have proceeded in the Southern District of New York, the District of Maryland, and the District of Columbia. New York v. U.S. Dep't of Educ., No. 1:20-cv-4260 (S.D.N.Y); Know Your IX v. DeVos, No. 1:20-cv-1224 (D. Md.); Pennsylvania v. DeVos, No. 1:20-cv-1468 (D.D.C.). The movants asked to intervene in all three cases. The Southern District of New York denied intervention. In the District of Maryland, the - 5 - has opposed the relief sought by the plaintiffs and has challenged
the plaintiffs' standing, asserted various APA defenses as to each
claim, and argued that there was no Equal Protection violation.
The movant-intervenors disagree with the government's
strategic and policy choice not to argue that the First Amendment
requires the use of a standard for actionable sexual harassment
that is at least as narrow as the standard set by Davis and that
the additional procedural protections for students accused of
sexual harassment provided by the Rule are required by the Fifth
Amendment's Due Process Clause. The movant-intervenors thus
requested intervention for the purpose of presenting those
constitutional arguments in addition to the government's non-
constitutional defenses. In their motion, the movants argued that
they were entitled to intervene as of right under Rule 24(a) and
by the court’s permission under Rule 24(b).
Before either the plaintiffs or the government filed any
responses or objections, the district court denied the motion to
intervene in a summary electronic order. The order stated, in
full:
The motion to intervene is denied as there is no adequate showing that the government will not adequately protect the proposed intervenors['] rights. The Court will, of
motion to intervene was denied as moot after the case was dismissed without prejudice for lack of standing. The District Court for the District of Columbia granted permissive intervention.
- 6 - course, welcome a brief amicus curiae from the proposed intervenors.
This interlocutory appeal followed.3 We held oral argument on
January 5, 2021.4
III. Discussion
On timely motion, the court must permit anyone to intervene who . . . 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)(2). Failure to satisfy any single
requirement for intervention as of right under Rule 24(a) – such
as showing inadequate representation by existing parties – is
sufficient grounds to deny a request for "intervention as of
right." See id.
If the requirements of Rule 24(a)(2) are not met, "[o]n
timely motion, the court may permit anyone to intervene
who . . . has a claim or defense that shares with the main action
An order denying a motion to intervene is immediately 3
appealable. Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 204 (1st Cir. 1998).
Between the filing of this appeal and the issuance of this 4
opinion, the district court tried the case. The movant-intervenors did not file any motion in the district court for leave to file an amicus brief raising their legal theory. The district court granted every motion for leave to file an amicus brief that was presented to it, accepting nine briefs from various amici. - 7 - a common question of law or fact." Fed. R. Civ. P. 24(b)(1)(B).
Intervention under Rule 24(b) is known as "permissive
intervention." Id.
The movant-intervenors contend that the district court
abused its discretion by denying their motion to intervene as of
right on the ground that the government will adequately represent
their interests. They also argue that the district court abused
its discretion by failing to adequately explain its denial of
permissive intervention, preventing this court from conducting a
meaningful appellate review. The plaintiffs respond that the
district court correctly reasoned that the government will
adequately represent the movant-intervenors' interests and that
this serves as sufficient reason to deny both intervention as of
right and permissive intervention.
A. Intervention as of Right
In denying the motion to intervene, the district court
found that the movant-intervenors failed to show that the existing
defendants, namely, the government, would not adequately represent
their claimed interests.5 Generally, "an applicant for
intervention need only make a minimal showing that the
5 Because we may affirm solely on the ground that the government adequately represents whatever interests the movants may have in the subject matter of this case, we do not express any opinion as to whether the movants have shown that they have an interest sufficient to warrant intervention under Rule 24(a). - 8 - representation afforded by existing parties likely will prove
inadequate." Patch, 136 F.3d at 207. But, in any case, "[a] party
that seeks to intervene as of right must produce some tangible
basis to support a claim of purported inadequacy." Id.
Furthermore, "the burden of persuasion is ratcheted
upward" when the movant seeks to intervene as a defendant alongside
a government entity. See id. In those circumstances, "this court
and a number of others start with a rebuttable presumption that
the government will defend adequately its action[.]" Cotter v.
Mass. Ass'n of Minority L. Enf't Officers, 219 F.3d 31, 35 (1st
Cir. 2000). A successful rebuttal "requires 'a strong affirmative
showing' that the agency (or its members) is not fairly
representing the applicants' interests." Patch, 136 F.3d at 207
(quoting United States v. Hooker Chems. & Plastics Corp., 749 F.2d
968, 985 (2d Cir. 1984)).
The movant-intervenors attempt to make that showing by
identifying their "interests and goals" purportedly not shared by
the government. They contend that while they want to secure broad
First Amendment and due process rights on college and university
campuses, the government wants to minimize legal challenges and
maintain regulatory flexibility. The movant-intervenors assert
that these divergent motivations have led them to pursue different
legal strategies than those pursued by the government.
Specifically, the movant-intervenors say that the government has
- 9 - failed to make constitutional arguments that they would make, and
they suggest that the government has made an argument (that the
plaintiffs lack standing) that they would not. Consequently, the
movant-intervenors contend, the government's representation is
inadequate.
We reject the movant-intervenors' claim. As explained
in Massachusetts Food Association v. Massachusetts Alcoholic
Beverages Control Commission, a movant-intervenors' interest in
making an additional constitutional argument in defense of
government action does not render the government's representation
inadequate. 197 F.3d 560, 567 (1st Cir. 1999) (rejecting movant-
intervenors' argument that the state's representation was
inadequate because of their intent to make an argument under the
Twenty-First Amendment that was not pursued by the state); see
also T-Mobile Ne., 969 F.3d at 39 ("[T]he presumption that a
governmental entity defending official acts adequately represents
the interests of its citizens applies full-bore, given the Town's
vigorous, no-holds-barred defense of its refusal to grant a
variance or other regulatory relief to T-Mobile."); Maine v. Dir.,
U.S. Fish & Wildlife Serv., 262 F.3d 13, 19-20 (1st Cir. 2001)
(rejecting argument that movants were entitled to intervention
where government could make "several obvious, more direct
arguments . . . in which the [movant and government had] a common
interest"); Daggett v. Comm'n on Governmental Ethics & Election
- 10 - Practices, 172 F.3d 104, 112-13 (1st Cir. 1999). Nor is perfect
identity of motivational interests between the movant-intervenor
and the government necessary to a finding of adequate
representation. See Mass. Food Ass'n, 197 F.3d at 567. And the
government's putative interests in "regulatory flexibility" and
minimizing future legal challenges do not create a sufficient case-
specific conflict to render the district court's denial of
intervention an abuse of discretion.
For example, in Cotter the court held that the City of
Boston's defense of its use of racial criteria in promotions for
law enforcement officers was sufficiently inadequate as to the
movant minority police officers because the City's interests and
likely defenses were in conflict with the minority officers'
interests and proposed defense that racial criteria were
appropriate given "alleged deficiencies in its current"
promotional exams. 219 F.3d at 32-33, 35-36 (emphasis omitted).
Similarly, in Conservation Law Foundation of New England, Inc. v.
Mosbacher, the court held that a state agency's representation of
movant fishing groups was inadequate when the agency raised no
defense to the suit and agreed to a settlement that subjected the
movants to more stringent rules than had previously been in effect.
966 F.2d 39, 44 (1st Cir. 1992). In contrast, here, the government
has raised several defenses to the suit that would uphold the Rule,
while the movant-intervenors would only raise extra constitutional
- 11 - theories not in conflict with the government's defenses nor
requiring additional evidentiary development.
The movants point to International Paper Co. v.
Inhabitants of the Town of Jay for the supposition that "the
adverse impact of stare decisis standing alone may be sufficient
to satisfy the [practical impairment] requirement." 887 F.2d 338,
344 (1st Cir. 1989) (alteration in original) (quoting 3B J. Moore,
Moore’s Federal Practice ¶ 24.07[3], at 24-65 (2d ed. 1987)). From
this, the movants infer that the district court abused its
discretion in denying intervention because the judgment they seek
would set precedent on their preferred constitutional theories
while the judgment sought by the government would not.
International Paper Co. does not render the district court’s
decision an abuse of discretion, as the government's success in
defending the Rule would not foreclose the movants from presenting
their constitutional arguments in a later and appropriate case.
See id. ("[I]t was not unreasonable for the district court to
conclude that a refusal to let Maine intervene would not impair or
impede Maine’s ability to protect its interest in the
interpretation of its environmental laws.").
Moreover, the movants' proposition that the government's
avoidance of constitutional issues renders inadequate its
representation of their interest in having those issues addressed
is inconsistent with the principle of constitutional avoidance.
- 12 - Courts are obliged to avoid rulings on constitutional questions
when non-constitutional grounds will suffice to resolve an issue.
Sony BMG Music Ent. v. Tenenbaum, 660 F.3d 487, 511 (1st Cir. 2011)
(discussing the myriad problems that are likely to arise if a court
fails to observe the principle of constitutional avoidance and
vacating district court’s avoidable ruling on constitutional
issue). Consistent with that principle, the government made a
strategic and policy choice to defend the Rule's promulgation on
non-constitutional grounds. The movants' putative interest in
having certain constitutional issues addressed now rather than
later does not obviate the principle of constitutional avoidance.
Indeed, it would be inconsistent with the principle of
constitutional avoidance to conclude that the district court
abused its discretion in denying an intervention sought to expedite
a judgment on constitutional questions that could have been avoided
by limiting the case to the issues as framed by the plaintiffs and
government. Accordingly, the district court did not abuse its
discretion in denying intervention as of right. See Fed. R. Civ.
P. 24(a)(2).6
6 To the extent the movants contend that the district court abused its discretion by summarily disposing of the motion for intervention as of right, that argument is foreclosed by T-Mobile Northeast. 969 F.3d at 38. - 13 - B. Permissive Intervention
The movant-intervenors assert that, even if they are not
entitled to intervene as of right, the district court should have
permitted them to intervene under Rule 24(b). They argue that the
district court failed to adequately explain its reasoning for
denying the motion to intervene, such that this court cannot
meaningfully review the order.7
This court's precedents foreclose the movants' position.
The court may affirm a district court's ruling for any reason
supported by the record. Miles v. Great N. Ins. Co., 634 F.3d 61,
65 n.5 (1st Cir. 2011). That holds true even in the context of
review for abuse of discretion, as this court offers deference to
the district court's decisionmaking to the extent its "findings or
reasons can be reasonably inferred." Cotter, 219 F.3d at 34; see
also Ungar v. Arafat, 634 F.3d 46, 51 (1st Cir. 2011) ("The
district court denied the motion to intervene in a bench decision.
It did not subdivide its analysis into discrete silos.
Nevertheless, its findings and reasoning can easily be inferred
from the record."). And, to the extent the district court's
reasons are not stated or cannot be reasonably inferred, "abuse-
7 The movants also reiterate their belief that the district court erred in finding that the government will adequately represent their interests, and they contend that the district court therefore abused its discretion if it relied on that ground to deny permissive intervention. - 14 - of-discretion review simply becomes less deferential because there
is nothing to which to give deference." See T-Mobile Ne., 969
F.3d at 38 (internal quotation marks omitted). But even if "the
district court summarily denies a motion to intervene, the court
of appeals must review the record as a whole to ascertain whether,
on the facts at hand, the denial was within the compass of the
district court's discretion." Id. (affirming summary order
denying motion to intervene).
T-Mobile Northeast forecloses the movants' suggestion
that the district court abused its discretion by not adequately
considering their arguments for permissive intervention or by
summarily denying the motion. Id. Moreover, to conclude that the
district court did not abuse its discretion in denying the motion,
we need not go beyond the express reasons the district court gave
for denying intervention. Though its order was terse, the district
court’s reasoning need not be divined: the movant-intervenors did
not show that the government would not adequately protect their
interests and the amicus procedure provides sufficient opportunity
for them to present their view.8 That reasoning, which as discussed
8 Of course, a district court should not consider arguments raised by amici that go beyond the issues properly raised by the parties. E.g., Sindi v. El-Moslimany, 896 F.3d 1, 31 n.12 (1st Cir. 2018). And, as we noted, the principle of constitutional avoidance requires courts to avoid ruling on constitutional questions if the issues can be resolved on non-constitutional grounds. Sony BMG Music Ent., 660 F.3d at 511. - 15 - above supports denial of intervention as of right, is also
sufficient on this record to sustain the district court's
discretion as to permissive intervention. See id. at 41 ("To
begin, a district court considering requests for permissive
intervention should ordinarily give weight to whether the original
parties to the action adequately represent the interests of the
putative intervenors."); Mass. Food Ass'n, 197 F.3d at 568
(affirming denial of motion for permissive intervention when
"[t]he district court reasonably concluded that the Commonwealth
was adequately representing the interests of everyone concerned to
defend the statute and that any variations of legal argument could
adequately be presented in amicus briefs").
IV. Conclusion
The district court's order denying the Foundation for
Individual Rights in Education, Independent Women's Law Center,
and Speech First, Inc.'s motion to intervene is AFFIRMED.
- 16 -