Filed: Nov. 12, 2020
Latest Update: Nov. 13, 2020
Case: 20-50774 Document: 00515636320 Page: 1 Date Filed: 11/12/2020
United States Court of Appeals
for the Fifth Circuit United States Court of Appeals
Fifth Circuit
FILED
November 12, 2020
No. 20-50774 Lyle W. Cayce
Clerk
Doctor George Richardson; Rosalie Weisfeld;
MOVE Texas Civic Fund;
League of Women Voters of Texas;
Austin Justice Coalition;
Coalition of Texas with Disabilities,
Plaintiffs—Appellees,
versus
Federico Flores, Jr.; Maria Guerrero;
Vicente Guerrero,
Movants—Appellants,
versus
Texas Secretary of State, Ruth R. Hughs,
Defendant—Appellant―Appellee.
Appeal from the United States District Court
for the Western District of Texas
No. 5:19-CV-963
Before Higginbotham, Smith, and Oldham, Circuit Judges.
Jerry E. Smith, Circuit Judge:
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Movants, the plaintiffs in a separate but similar case, were denied
intervention in the district court. They take the unusual step of moving to
intervene in an ongoing appeal. Because intervention on appeal is reserved
for exceptional cases, and movants’ reasons for intervening do not come
close to that high threshold, we deny the motion.
I.
Federico Flores, Jr., Maria Guerrero, and Vincente Guerrero moved
to intervene in the Secretary of State’s appeal of an order granting the
plaintiffs partial summary judgment and injunctive relief. See Richardson v.
Hughs, No. 5-19-CV-963, 2020 WL 5367216 (W.D. Tex. Sept. 8, 2020). The
movants are the plaintiffs in Flores v. Hughs, No. 7:18-CV-113 (S.D. Tex.
Apr. 16, 2018), a separate case challenging the constitutionality of the
signature-verification procedures at issue in this case. Flores was filed before
this case but has not yet reached final judgment.
Shortly before the district court in this case granted partial summary
judgment, the Flores plaintiffs moved for permissive intervention under Fed-
eral Rule of Civil Procedure 24(b). They so moved in order to ask the Rich-
ardson district court to stay its proceedings pending the disposition of the
Flores litigation. The district court denied that motion in the same order in
which it granted summary judgment. Richardson, 2020 WL 5367216, at *37
n.48. The movants timely filed a notice of appeal of the denial. That appeal
will proceed along with the Secretary of State’s appeal under the same case
number.
Separate from their appeal of the denial of intervention, the movants
filed this motion to intervene in the Secretary’s appeal. Their motivation for
doing so is somewhat foggy. In some of their submissions, the movants have
suggested that the motion must be granted so that their appeal of the denial
of their initial motion may be heard alongside the Secretary’s appeal. At
2
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other times, they’ve expressed a desire to convey their view that, although
the district court was correct in finding the signature-verification procedures
unconstitutional, the remedy it crafted is unworkable. Because the movants
are not “parties to the declaratory and injunctive portions of the [Richardson
district court’s] order,” they moved to intervene in order to “protect their
interests in regards to the injunctive relief issued by the district court that is
now pending before this Court.”
II.
There is no appellate rule allowing intervention generally. 1 Instead,
the Federal Rules of Appellate Procedure contemplate intervention only in
proceedings to review agency action. FED. R. APP. P. 15(d). But despite the
lack of an on-point rule, we have allowed intervention in cases outside the
scope of Rule 15(d). See, e.g., United States v. Bursey, 515 F.2d 1228, 1238–39
(5th Cir. 1975).
A.
Perhaps because there is no rule explicitly allowing intervention on
appeal, the caselaw explicating the standards for such motions is scarce. In
Bursey, when granting a similar motion to intervene, we said “a court of
appeals may, but only in an exceptional case for imperative reasons, permit
intervention where none was sought in the district court.” Id. at 1238 n.24
(emphasis added) (quoting McKenna v. Pan Am. Petroleum Corp.,
303 F.2d
778, 779 (5th Cir. 1962) (per curiam)). Thus, in part because there is no rule
allowing them, motions to intervene on appeal are reserved for truly
1
Motions to intervene on appeal are different from motions to intervene for pur-
poses of appeal. Motions to intervene for purposes of appeal are used where “the existing
parties have decided not to pursue [an appeal]” and are filed in district courts in the first
instance under the Federal Rules of Civil Procedure. 6 JAMES WM. MOORE ET AL.,
MOORE’S FEDERAL Practice § 24.24[4], at 24−129 (3d ed. 2020) (footnote omitted).
3
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exceptional cases.
Movants contend that the standard is more lenient than that, because
“the Supreme Court has recognized that ‘the policies underlying interven-
tion (in the district courts) may be applicable in appellate courts.’” Id. (citing
United Auto. Workers, Local 283 v. Scofield,
382 U.S. 205, 217 n.10 (1965)).
But the Bursey court made that statement in the context of a footnote explain-
ing why intervention was permissible at all despite the lack of a rule allowing
it.
Id. When actually analyzing whether intervention was permissible, the
Bursey court said,
In the exceptional circumstances of this case, where the senior Bur-
seys assert a significant stake in the matter on appeal, where it
is evident that their interest cannot adequately be represented
by Brett Bursey, (who has now disclaimed any personal interest
in the deposit), and where their lack of timely intervention
below may be justified by the district court’s action without
notice, we think that intervention was proper under McKenna.
Id. (emphasis added). Moreover, Automobile Workers involved intervention
in an appeal from an agency order, which the Court said was permitted by the
relevant statute, and which is now allowed by Rule 15(d). See Auto.
Workers,
382 U.S. at 217. In cases like Automobile Workers, involving interventions in
review of agency action, the analysis is much more akin to that of a district
court’s considering a motion under Federal Rule of Civil Procedure 24.
Moreover, to prevent litigants from using procedural gamesmanship
to skirt unfavorable standards of review, there must be a steep threshold for
allowing intervention on appeal. “The district court possesses broad discre-
tion in determining whether to grant permissive intervention and will rarely
be reversed on appeal.” 6 James Wm. Moore, supra, § 24.10[1], at 24-68.
Accord Edwards v. City of Hous., 78 F.3d 983, 992 (5th Cir. 1996) (en banc)
(applying abuse-of-discretion review to such decisions). If we analyzed
motions to intervene on appeal using the same framework district courts use
4
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to address motions to intervene there, litigants would effectively have de novo
review of their intervention motion. Therefore, allowing intervention on
appeal only “in an exceptional case for imperative reasons” is necessary to
prevent such procedural gamesmanship. Bursey, 515 F.2d at 1238 n.24 (quot-
ing
McKenna, 303 F.2d at 779). 2
B.
Having noted that we should grant motions like the Flores plaintiffs’
only in exceptional cases, we ask whether they meet that standard. They do
not.
The facts of Bursey demonstrate what might meet the high bar of
“imperative reasons.” Id. (quoting McKenna, 303 F.2d at 779). The movants
were Bursey’s parents, who had posted a deposit on his bail bond that was to
“revert to [them] upon disposition of the [criminal] case [against Bursey].”
Id. at 1231. But upon disposition of that case—which of course Bursey’s
parents were not parties to—the district judge, without notice to Bursey, his
parents, or the government, directed the clerk to use the deposit to pay for
Bursey’s appointed counsel.
Id. Bursey filed a notice of appeal from that
order while disclaiming any personal interest in the deposit.
Id. at 1232, 1238
n.24. His parents’ motion to intervene was granted because (1) they were the
actual parties in interest, (2) no other party could represent their interest
because all other parties had disclaimed any interest in the property at issue,
and (3) the district court acted without notifying anyone, eliminating the
possibility of intervention in the district court.
Id. at 1238 n.24. 3
2
Cf. Hutchinson v. Pfeil, 211 F.3d 515, 519 (10th Cir. 2000) (denying a motion to
intervene where the movant was doing so because time had expired to appeal the district
court’s denial of her motion).
3
Bursey is the rare case. Within our circuit, cursory denials of motions to intervene
on appeal are more common. See, e.g., McKenna, 303 F.2d at 779; Morin v. City of Stuart,
5
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In their divers filings, movants at various times have put forth two
possible reasons in favor of allowing intervention. Neither is an “imperative
reason[].” Id. (quoting McKenna, 303 F.2d at 779).
First, movants point to the need for their appeal to be consolidated
with the Secretary’s. The Flores plaintiffs moved to intervene in the Richard-
son district court to request that the Richardson court stay all proceedings
pending the disposition of the Flores litigation. They contended that, because
Flores was filed before Richardson, covers the same issues as Richardson, and
involves the same defendant, Richardson should be stayed. The movants
posit that if an eventual merits panel decides the Richardson district court
abused its discretion in denying that motion, the proper remedy may be to
vacate the Richardson district court’s order and remand with an order to stay
proceedings until the Flores district court rules. 4 But if a different merits
panel has already ruled on the merits of the Richardson plaintiffs’ substan-
tively identical claims without the Flores plaintiffs’ participation, the Flores
plaintiffs’ success on appeal will be a hollow victory. Therefore, the mov-
ants’ theory goes, the same panel must hear both appeals so it can rule on the
movants’ appeal first.
Because both the movants and the Secretary are appealing from the
same order, however, both appeals have been docketed under the same case
number in this court. 5 Therefore, assuming the motion to intervene in the
112 F.2d 585, 585 (5th Cir. 1939) (per curiam). Furthermore, one of our sister circuits
denied a similar motion even where movants’ asserted intervention was necessary to pro-
tect their right to vote. Hall v. Holder,
117 F.3d 1222, 1231 (11th Cir. 1997).
4
See W. Gulf Mar. Ass’n v. ILA Deep Sea Local 24, 751 F.2d 721, 732 (5th Cir. 1985)
(vacating a preliminary injunction after finding the district court should have stayed the
action out of comity for the first-filed litigation).
5
See Fed. R. App. P. 3(b)(1)–(2) (allowing consolidated appeals where multiple
appellants appeal from the same district court order).
6
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Secretary’s appeal is denied, the same merits panel will hear both the
Secretary’s appeal of the summary judgment and the Flores plaintiffs’ appeal
of the denial of their motion to intervene. This obviates that reason for
intervention.
Second, the movants have said that “[w]ithout intervention, Movants
will be unable to represent their interest in the ineffective injunction that fails
to cure t[he] signature mismatch provisions despite” being first to file and
moving to intervene in the district court. It is true that the movants express
a unique view offered by neither party—that the plaintiff-appellees are cor-
rect that the signature-verification procedures are unconstitutional, but the
defendant-appellee is correct that the remedy is unhelpful. To the extent
Movants want their voices heard, however, the proper procedure is to move
to appear as amici curiae, not to move to intervene. 6 Since granting leave to
file an amici brief is within our discretion, we hereby do so sua sponte. 7
III.
The plaintiffs suggest that, because there is no Federal Rule of Appel-
late Procedure allowing motions to intervene, the motion to intervene must
be stricken. As explained, however, we recognize that such motions may be
granted in “exceptional case[s] for imperative reasons.” Bursey, 515 F.2d at
1238 n.24 (quoting
McKenna, 303 F.2d at 779). Therefore, we decline to
6
See, e.g., Stuart v. Huff, 706 F.3d 345, 355 (4th Cir. 2013) (affirming the denial of
intervention and noting that appellants could still present their views in an amicus brief);
Associated Builders & Contractors, Inc. v. Herman,
166 F.3d 1248, 1254 (D.C. Cir. 1999) (not-
ing that the motions panel had earlier denied intervention and allowing the movant to file
as amicus).
7
Somewhat confusingly, this will mean that the movants will be submitting two
briefs to the merits panel: a party brief for their appeal of the denial of their motion to
intervene and an amici brief for the Secretary’s appeal of the summary judgment and
injunction. Each offering should be appropriately focused in its discussion.
7
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strike the motion.
*****
The motion to intervene is DENIED. Leave to file an amici curiae
brief is GRANTED. The motion to strike the motion to intervene is
DENIED.
8
