Filed: Oct. 03, 2013
Latest Update: Mar. 28, 2017
Summary: Case: 12-15770 Date Filed: 10/03/2013 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15770 Non-Argument Calendar _ Docket No. 3:12-cv-00040-TCB RICHARD P. LINDSEY, Plaintiff-Appellee, versus FAYETTE COUNTY BOARD OF COMMISSIONERS, CHAIRPERSON HERB FRADY, in his official capacity, et al., Defendants-Appellees, ALI ABDUR-RAHMAN, ALISHA ABDUR-RAHMAN, Interested Parties - Appellants. Case: 12-15770 Date Filed: 10/03/2013 Page: 2 of 6 _ Appeal f
Summary: Case: 12-15770 Date Filed: 10/03/2013 Page: 1 of 6 [DO NOT PUBLISH] IN THE UNITED STATES COURT OF APPEALS FOR THE ELEVENTH CIRCUIT _ No. 12-15770 Non-Argument Calendar _ Docket No. 3:12-cv-00040-TCB RICHARD P. LINDSEY, Plaintiff-Appellee, versus FAYETTE COUNTY BOARD OF COMMISSIONERS, CHAIRPERSON HERB FRADY, in his official capacity, et al., Defendants-Appellees, ALI ABDUR-RAHMAN, ALISHA ABDUR-RAHMAN, Interested Parties - Appellants. Case: 12-15770 Date Filed: 10/03/2013 Page: 2 of 6 _ Appeal fr..
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Case: 12-15770 Date Filed: 10/03/2013 Page: 1 of 6
[DO NOT PUBLISH]
IN THE UNITED STATES COURT OF APPEALS
FOR THE ELEVENTH CIRCUIT
___________________________
No. 12-15770
Non-Argument Calendar
___________________________
Docket No. 3:12-cv-00040-TCB
RICHARD P. LINDSEY,
Plaintiff-Appellee,
versus
FAYETTE COUNTY BOARD OF COMMISSIONERS,
CHAIRPERSON HERB FRADY,
in his official capacity,
et al.,
Defendants-Appellees,
ALI ABDUR-RAHMAN,
ALISHA ABDUR-RAHMAN,
Interested Parties - Appellants.
Case: 12-15770 Date Filed: 10/03/2013 Page: 2 of 6
______________________________
Appeal from the United States District Court
for the Northern District of Georgia
_______________________________
(October 3, 2013)
Before HULL, JORDAN, and EDMONDSON, Circuit Judges.
PER CURIAM:
Ali and Aisha Abdur-Rahman (“Intervenors”) appeal from the district
court’s order denying their post-judgment motion to intervene as defendants in a
civil action. Appellees -- plaintiff and defendants in the underlying action -- have
filed motions to dismiss the appeal, which we have construed as motions for
summary affirmance. We grant Appellees’ motions; we affirm in part and dismiss
in part.
In the underlying civil action, Plaintiff-Appellee Richard Lindsey sought
declaratory and injunctive relief, alleging that the Fayette County Board of
Commissioners districts were unconstitutional. Shortly after Lindsey filed his
complaint, the parties filed a joint motion seeking, among other things, the
approval of a consent decree and entry of final judgment. The district court issued
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the consent decree and terminated the case. The district court retained jurisdiction
over the case only for purposes of enforcing the consent decree.
Several months after the case was terminated, Intervenors filed a motion to
intervene as defendants, pursuant to Fed.R.Civ.P. 24(a) and (b). The district court
issued an order staying the action pending resolution of the intervention motion.
The district court ultimately denied Intervenors’ motion to intervene based
on two independent grounds: (1) Intervenors failed to demonstrate standing to
continue the suit after the original parties had settled, as required by Dillard v.
Chilton Cnty. Comm’n, 495 F.3d 1324, 1330 (11th Cir. 2007); and (2) “[e]ven if
Intervenors had standing,” they failed to show that their motion was timely, as
required by Fed.R.Civ.P. 24(a) and (b).1
In their initial appellate brief, Intervenors make no argument challenging the
district court’s denial -- on the ground of untimeliness -- of their motion to
intervene. Instead, Intervenors raise the timeliness issue for the first time in their
reply brief. So, Intervenors have waived the timeliness argument. See Kernel
Records Oy v. Mosley, 694 F.3d 1294, 1310 n.17 (11th Cir. 2012).
1
The district court later issued an order imposing sanctions against Intervenors’ lawyer under
Fed.R.Civ.P. 11. Intervenors appealed separately from that order, and that appeal is docketed as
No. 13-10895.
In this appeal, Intervenors have filed a motion to stay the district court’s sanctions order.
Because the district court’s sanctions order is not properly before us in this appeal, we lack
jurisdiction to consider the motion. See Holloman v. Mail-Well Corp.,
443 F.3d 832, 844-45
(11th Cir. 2006) (dismissing an appeal from a sanctions order for lack of jurisdiction where
sanctions were imposed only on the lawyer when the lawyer failed to list himself as an appellant
in the notice of appeal).
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Because Intervenors fail to challenge a dispositive issue, they cannot prevail
on appeal. See NAACP v. New York, 93 S. Ct. 2591, 2603 (1973) (explaining that
a court considering a motion to intervene “must first be satisfied as to timeliness”
and, if the motion to intervene “is untimely, intervention must be denied.”). No
substantial question exists for the outcome of the case; we grant Appellees’
motions for summary affirmance. 2 See Groendyke Transp., Inc. v. Davis,
406 F.2d
1158, 1162 (5th Cir. 1969) (summary disposition is necessary and proper when
“one of the parties is clearly right as a matter of law so that there can be no
substantial question as to the outcome of the case. . . .”).
Intervenors were not parties to the lawsuit, and their motion to intervene was
denied properly. As a result, they lack standing to challenge the consent decree.
See Marino v. Ortiz, 108 S. Ct. 586, 587 (1988) (“only parties to a lawsuit, or those
that properly become parties, may appeal an adverse judgment”). To the extent
Intervenors seek to challenge the district court’s issuance of the consent decree, we
dismiss the appeal.
AFFIRMED IN PART; DISMISSED IN PART.
2
Because we grant Appellees’ motions for summary affirmance based on Intervenors’ failure to
appeal the timeliness-of-the-motion issue, we need not address Appellees’ alternative argument
that Intervenors failed to file a timely appellate brief.
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JORDAN, Circuit Judge, concurring:
I agree that we must affirm the district court’s denial of the motion to
intervene because Ali and Alisha Abdur-Rahman did not contest, in their initial
brief, the district court’s ruling that their motion was untimely. And I also agree
that, as a result, we must dismiss the challenge to the underlying consent decree. I
therefore join the Court’s opinion in full.
There are, however, troubling indications that the lawsuit filed by Richard
Lindsey against Fayette County was the product of collusion. First, several days
before the lawsuit was filed, Steve Brown – a Fayette County Commissioner –
asked the Attorney General of Georgia for an opinion as to whether the County
could “sue itself” through a “pre-arranged agreement” in which it would “pay[ ]
the expenses of a [third] party to file litigation” against the County. Second, two
Fayette County officials -- Commissioner Brown and Commissioner Robert
Horgan – testified under oath (at their depositions in a related case) that Scott
Bennett, the Fayetteville County Attorney, told them that he had asked Mr.
Lindsey to file the lawsuit against the County in order to get the February 2012
redistricting plan approved. Third, emails between Mr. Lindsey and Mr. Bennett
appear to confirm that Mr. Bennett (counsel for the would-be-defendants) drafted
the complaint for Mr. Lindsey (the would-be-plaintiff) to file against his clients,
and that both men then worked together to finalize the document before it was filed
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in court. Fourth, less than two weeks after the lawsuit was filed, Mr. Lindsey and
the County filed a joint motion for approval of a consent decree.
Mr. Lindsey, in a letter he sent to counsel for the Abdur-Rahmans, denied
that there was any collusion. But if it is true that the lawsuit was collusive, then
the district court lacked Article III jurisdiction to entertain it, see generally United
States v. Johnson, 319 U.S. 302, 304-05 (1943), and Mr. Lindsey and Mr. Bennett
may have improperly manufactured (without the district court’s knowledge) a case
or controversy. In my opinion, the district court should inquire further into how
this lawsuit came to be filed and settled.
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