Bost v. Illinois State Board of Elections

IN THE UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF ILLINOIS

EASTERN DIVISION

MICHAEL J. BOST, et al.,

Plaintiffs,

No. 22-cv-02754

v.

THE ILLINOIS STATE BOARD OF Judge John F. Kness

ELECTIONS, et al.,

Defendants.

MEMORANDUM OPINION & ORDER

This case involves a challenge to an Illinois election statute that governs the

time for counting ballots received after the date of an election. Presently before the

Court is a motion by the Democratic Party of Illinois (“DPI”) to intervene as a party.

DPI contends that, because it possesses unique interests that are at risk, DPI is

entitled to intervene as of right under Rule 24(a) of the Federal Rules of Civil

Procedure. DPI also contends, in the alternative, that it should be permitted to

intervene under Rule 24(b).

As explained below, DPI cannot meet its burden to show that its interests will

not be adequately represented by the parties to the case. As a result, DPI is not

entitled to intervene as of right. Separately, because allowing DPI to intervene would

threaten to delay this time-sensitive case further, the Court, in its discretion, denies

DPI’s motion seeking permission to intervene as a party under Rule 24(b).

Accordingly, the Court denies DPI’s motion in its entirety. But although the Court

will not permit DPI to join the case as a party, the Court will permit DPI the option

to designate its already-presented substantive arguments as those of an amicus

curiae.

I. BACKGROUND

In this election-related suit, Plaintiffs allege that the Illinois ballot receipt

deadline statute (10 Ill. Comp. Stat. Ann. § 5/19-8(c)) (the “Ballot Receipt Statute”),

which allows ballots to be received and counted up to 14 days after Election Day,

violates both the United States Constitution and federal statutory law. 2 U.S.C. § 1;

2 U.S.C. § 7; and 3 U.S.C. § 1. (Dkt. 1.) Plaintiffs ask the Court to declare the Ballot

Receipt Statute unlawful and to enjoin Illinois from receiving and counting ballots

after Election Day. (Dkt. 1 at 2.)

Plaintiffs sued the Illinois State Board of Elections (“State Board”) and its

Executive Director, Bernadette Matthews, in her official capacity. Plaintiffs named

the State Board and Ms. Matthews as defendants because the State Board is

responsible for supervising the administration of election laws in Illinois. (Dkt. 1 at

4.)

DPI seeks to intervene as a party-defendant. (Dkt. 13.) DPI seeks intervention

as of right under Rule 24(a)(2) of the Federal Rules of Civil Procedure and, in the

alternative, permissive intervention under Rule 24(b). (Dkt. 13 at 4.) DPI contends

that intervention is appropriate because Plaintiffs’ challenge to the Ballot Receipt

Deadline affects its voter education resource allocation and threatens to

disenfranchise DPI’s members. DPI states that these interests are sufficient to grant

permissive intervention as well. DPI also argues that permissive intervention would

be appropriate because it will result in “neither prejudice nor undue delay.” (Dkt. 13

at 12.)

Plaintiffs oppose DPI’s intervention. (Dkt. 27.) Plaintiffs argue that DPI lacks

a substantial interest that would be impaired by the litigation and that DPI’s

marginal interests are adequately represented by Defendants. (Dkt. 27 at 3–11.)

Plaintiffs also argue that because DPI does not have a claim or defense that shares a

common question of law or fact with the main action, permissive intervention should

be denied. (Dkt. 27 at 12.)

Defendants, who are represented by the Attorney General of Illinois, take no

position on DPI’s motion to intervene. (Dkt. 13 at 2; Dkt. 39 at 19).

II. STANDARD OF REVIEW

A. Intervention as of Right

To intervene as of right, a proposed intervenor must satisfy four requirements

under Rule 24(a): (1) the motion must be timely; (2) the applicant must claim an

interest relating to the property or transaction that is the subject of the action; (3) the

applicant must be so situated that the disposition of the action may as a practical

matter impair or impede the applicant’s ability to protect that interest; and (4) the

existing parties must not be adequate representatives of the applicant’s interest.

Sokaogon Chippewa Cmty. v. Babbitt, 214 F.3d 941, 945–46 (7th Cir. 2000) (citing

Fed. R. Civ. P. 24(a)). A proposed intervenor must satisfy all four requirements,

Vollmer v. Publishers Clearing House, 248 F.3d 698, 705 (7th Cir. 2001), and the

intervenor’s failure to meet its burden as to even one of the necessary elements

requires the court to deny intervention as of right. See id.

Intervention as of right requires a “direct, significant[,] and legally protectable”

interest in the question at issue in the lawsuit. Wisconsin Educ. Ass’n Council v.

Walker, 705 F.3d 640, 658 (7th Cir. 2013) (quoting Keith v. Daley, 764 F.2d 1265, 1268

(7th Cir. 1985)). In general, something “more than the minimum Article III interest”

is required for intervention as of right. Flying J, Inc. v. Van Hollen, 578 F.3d 569, 571

(7th Cir. 2009). To satisfy Rule 24, “[t]hat interest must be unique to the proposed

intervenor.” Id. Moreover, the question of “[w]hether an applicant has an interest

sufficient to warrant intervention as a matter of right is a highly fact-specific

determination, making comparison to other cases of limited value.” Id.

A unique interest alone is not sufficient for intervention: the proposed

intervenor must also show that the interest will be “impaired or impeded” by the

litigation. Meridian Homes Corp. v. Nicholas W. Prassas & Co., 683 F.2d 201, 204

(7th Cir. 1982). Whether an interest is impaired depends on “whether the decision of

a legal question involved in the action would, as a practical matter, foreclose the

rights of the proposed intervenors in a subsequent proceeding” as judged by the

general standards of stare decisis. Id.

Even if a proposed intervenor has a sufficient interest that would be impaired

by the action, the intervenor still must show that the existing parties are not

adequate representatives of that interest. As the Seventh Circuit has explained, there

are three standards for determining the adequacy of representation, and the facts

and context of each case determine which standard applies. Planned Parenthood of

Wis., Inc. v. Kaul, 942 F.3d 793, 799 (7th Cir. 2019). The default rule is liberal and

finds that a proposed intervenor has satisfied the adequacy element if she shows that

the representation of her interest may be inadequate. Ligas ex rel. Foster v. Maram,

478 F.3d 771, 774 (7th Cir. 2007) (emphasis added). If, however, the proposed

intervenor and the named party share the same goal, there is a rebuttable

presumption of adequate representation, and the proposed intervenor must show

“some conflict” to intervene. Planned Parenthood, 942 F.3d at 799. Finally, when the

representative party is a “governmental body charged by law with protecting the

interests of the proposed intervenors,” the representation is presumed to be adequate

absent a showing of “gross negligence or bad faith.” Ligas, 478 F.3d at 799.

B. Permissive Intervention

Under Rule 24(b)(1), a district court “may permit anyone to intervene

who . . . has a claim or defense that shares with the main action a common question

of law or fact.” Planned Parenthood, 942 F.3d at 803. District courts have discretion

to grant or deny permissive intervention in the interest of “managing the litigation

before it.” Id. Although the district court may not “deny permissive intervention solely

because a proposed intervenor failed to prove an element of intervention as of right,”

it may consider “the elements of intervention as of right as discretionary factors” in

weighing permissive intervention. Id. at 804.

III. DISCUSSION

A. Intervention as of Right

To intervene under Rule 24(a), DPI must establish that (1) the motion is

timely; (2) DPI has an interest relating to the subject of the litigation; (3) the

disposition of the action may impair or impede DPI’s interest; and (4) Defendants are

not adequate representatives of DPI’s interest. Plaintiffs concede that DPI’s motion

to intervene is timely. (Dkt. 27 at 3.) At issue, therefore, is whether DPI has a

sufficient interest in the litigation that may be impaired by the action and whether

Defendants are adequate representatives of that interest.

1. Interest/Impairment

To intervene as of right under Rule 24(a), DPI must allege an interest relating

to the subject matter of the action that will potentially be impaired by the disposition

of the action. Illinois v. City of Chicago, 912 F.3d 979, 984 (7th Cir. 2019). In

determining whether a party has an interest sufficient for intervention as of right,

the Article III standing inquiry is instructive. Flying J, Inc., 578 F.3d at 571.

DPI states that it has two interests in the litigation. First, if an injunction is

granted, DPI would have to expend significant resources to educate the public about

the change in law, thus diverting DPI’s resources away from other causes. (Dkt. 13

at 7.) Second, an injunction barring Illinois from counting ballots received after

Election Day could threaten to harm “DPI’s members and constituents.” (Id. at 8.)

a. DPI’s interest in its resource allocation is a sufficient

interest that may be impaired by this action.

That an injunction would have an effect on DPI’s resource allocation is a

sufficient interest for the purpose of Rule 24(a). If the Court were to enjoin application

of the Ballot Receipt Statute, DPI would have to educate its members to ensure that

they were aware of the change and could cast a timely ballot in the 2022 election.

Doing so would require DPI to expend some of its limited resources that it could

otherwise spend elsewhere, giving DPI a monetary interest in Plaintiffs’ litigation

against Defendants. See, e.g., Crawford v. Marion Cnty. Election Bd., 472 F.3d 949,

951 (7th Cir. 2007).

Forced resource allocation thus satisfies the interest element of Rule 24(a).

Although mandatory intervention is governed by Rule 24(a), the Seventh Circuit has

explained that the Article III standing analysis is helpful in determining whether an

interest is sufficient to allow intervention. Planned Parenthood, 942 F.3d at 798.

Where the case involves a political party seeking to challenge or defend a voting law,

the potential effect on resource allocation is sufficient to confer Article III standing.

In Common Cause Indiana v. Lawson, for example, the Seventh Circuit held that the

Democratic Party had standing to challenge a new Indiana voter registration law

because the law would require it to “devote resources to combatting the effects of that

law that are harmful to [its] mission.” 937 F.3d 944, 950 (7th Cir. 2019) (cleaned up).

Similarly, in Crawford v. Marion County, the Seventh Circuit concluded that the

forced resource allocation was sufficient to give the Democratic Party standing to

challenge an Indiana voter identification law. 472 F.3d at 951 (“[T]he new law injures

the Democratic Party by compelling the party to devote resources to getting to the

polls those of its supporters who would otherwise be discouraged by the new law from

bothering to vote.”).

Plaintiffs contend that, because intervention is a highly fact-specific

determination, previous cases in which courts allowed intervention do not compel

intervention here. (Dkt. 27 at 4.) It is a truism that the intervention analysis is highly

fact specific; but because the injuries alleged in Common Cause and Crawford are

similar to DPI’s alleged interest, those precedents are nonetheless instructive. As did

the political parties there, DPI here has finite resources and, if Plaintiffs’ suit

succeeds, DPI will have to educate its voters on the change in the ballot deadline law

to ensure that their votes are cast and counted. Moreover, the effect on DPI’s

resources is a unique interest that belongs to DPI and no other existing party in the

suit. See Keith v. Daley, 764 F.2d 1265, 1268 (7th Cir. 1985) (“The interest must be

based on a right that belongs to the proposed intervenor rather than to an existing

party in the suit.”). DPI’s resource allocation interest is thus sufficient for Rule 24(a).

But merely possessing a unique interest in the action is not, standing alone,

sufficient to establish a right to intervene. Among other requirements, DPI must also

show that its identified interest may be impaired by the disposition of the action.

Meridian Homes Corp., 683 F.2d at 203. DPI has made that showing: if the injunction

Plaintiffs seek were granted, DPI’s efforts to challenge it could be impaired by the

decision in this action. Put another way, DPI’s challenge to the injunction (if imposed)

could possibly be decided based on issue preclusion, thus hampering DPI’s efforts to

have the preliminary injunction overturned. Under principles of stare decisis, then,

DPI’s interest in preserving its resources would be impaired; this is sufficient to meet

the impairment element of Rule 24(a).

b. DPI’s interest in protecting its members’ interests is not

sufficient for mandatory intervention.

DPI also states that it has an interest in Plaintiffs’ action because the

requested injunction could potentially threaten the rights of its members and

constituents by preventing ballots received after Election Day from being counted.

(Dkt. 13 at 8.) Although the Seventh Circuit has recognized the associational rights

of political parties in the standing context, see, e.g., Crawford, 472 F.3d at 951, a

proposed intervenor’s interest must also be unique to the proposed intervenor. Keith,

764 F.2d at 1268. In this respect, the Article III standing analysis is useful for

determining whether a proposed intervenor has sufficient interest in an action, but

the uniqueness requirement precludes finding that Rule 24(a) is met merely by a

showing that the proposed intervenor possesses standing to assert a claim.

DPI’s interest in the interests of its members and constituents, although

enough for Article III standing, is not enough for mandatory intervention under Rule

24(a). See Wis. Educ. Ass’n Council v. Walker, 705 F.3d 640, 658 (7th Cir. 2013). As

the entity charged with overseeing and administering election laws, the State Board

is equally interested in preserving the Ballot Receipt Statute for the voters in Illinois,

whether they be Democrats, Republicans, members of third parties, or independent

voters. DPI attempts to distinguish those interests by specifying its narrow interest

in protecting its own members. (Dkt. 35 at 5.) But the State Board’s interest in the

current action subsumes DPI’s narrower interest: by defending the Illinois law that

allows election officials to count ballots received after Election Day, the State Board’s

interest is in preserving the law for all Illinois voters, DPI members and constituents

included. Because this interest is not unique to DPI, it is not sufficient for mandatory

intervention.

2. Adequacy of Representation

a. The intermediate standard is appropriate.

Along with meeting all other requirements, a party that seeks to intervene in

a case by right under Rule 24(a) must also show that the existing parties are not

adequate representatives of the intervenor’s interest in the litigation. Courts faced

with this inquiry must apply a three-tiered approach that gauges the level of scrutiny

based upon the specific circumstances of each case. Planned Parenthood, 942 F.3d at

798. Under this approach, assessing the adequacy of representation will require

either: (1) a default liberal approach; (2) an intermediate approach that applies a

rebuttable presumption of adequacy of representation; or (3) a strict approach that

applies a flat presumption of adequacy absent a showing of gross negligence or bad

faith.

Under the default liberal approach, a court should find that a proposed

intervenor has satisfied the adequacy element if the intervenor shows that the

representation of its interest may be inadequate. Ligas, 478 F.3d at 774 (cleaned up

and emphasis added). If the proposed intervenor and the named party share the same

goal, however, a rebuttable presumption of adequate representation arises, and the

proposed intervenor must show “some conflict” to intervene. Planned Parenthood, 942

F.3d at 799. Finally, when the representative party is a “governmental body charged

by law with protecting the interests of the proposed intervenors,” the representation

is presumed to be adequate absent a showing of “gross negligence or bad faith.” Ligas,

478 F.3d at 799. Before determining if the parties to this action adequately represent

DPI’s interest, the Court must first determine which adequacy test applies.

Plaintiffs contend that the most rigorous standard, which requires a showing

of gross negligence or bad faith, should apply. (Dkt. 27 at 7.) In contrast, DPI contends

that, because the parties do not adequately represent its interests, the lenient default

standard should apply. (Dkt. 35 at 7.) In the Court’s view, however, neither party is

correct: the intermediate standard, which requires the proposed intervenor to show

“some conflict,” provides the appropriate metric.

Plaintiffs assert that the most rigorous standard applies because “[o]ne of the

named Defendants, the Illinois State Board of Elections, is the sole statewide

governmental agency in charge of administering Illinois state election law . . . .” (Dkt.

27 at 8.). That argument goes too far. As the Seventh Circuit has explained, the mere

presence of a governmental entity as a named party does not automatically require

the Court to apply the most stringent standard for assessing adequacy of

representation. On the contrary, it is only when a governmental entity is charged by

law with a legal duty to represent the interests of absentee parties that the most

stringent standard applies.. Driftless Area Land Conservancy v. Huebsch, 969 F.3d

742, 747 (7th Cir. 2020); see also Wisconsin Educ. Ass’n Council, 705 F.3d at 658–59

(“The state is not charged by law with protecting the interests of the Employees so

this standard [requiring gross negligence or bad faith] does not apply.”). Although the

State Board is undeniably charged with administering Illinois election law, it is not

charged by law with protecting the interests of political parties. Applying the most

stringent adequacy test to this case would thus be inappropriate. See Feehan v.

Wisconsin Elections Commission, 2020 WL 7630419 (E.D. Wis.) (Order Denying

Motion to Intervene) (“The Wisconsin Elections Commission ‘administers and

enforces Wisconsin elections law.’ It appears that neither the WEC nor its members

are charged with protecting the interests of a party or candidate.”) (cleaned up).

But because DPI and the State Board share the same goal—namely, defending

the legality of the Ballot Receipt Statute—the default standard urged by DPI is also

not the correct approach. See Wis. Educ. Ass’n Council, 705 F.3d at 659. Instead, the

alignment of interests between DPI and the State Board strongly suggests that the

intermediate adequacy test applies. Id. DPI resists this conclusion and contends that,

because DPI has a more focused interest in protecting its own members and their

votes, DPI and the State Board do not share the same goal. (Dkt. 35 at 7.)

Although DPI is correct that the intermediate standard does not apply merely

when a proposed intervenor and a party to the action share the same approximate

goal, Driftless, 969 F.3d at 748, DPI and the State Board’s interests are much closer

than merely seeking the denial of Plaintiffs’ proposed injunction. Both DPI and the

State Board seek, consistent with the Ballot Counting Statute, to have timely-cast

ballots counted for up to 14 days following Election Day. And, as explained above, the

mere fact that DPI’s interest is narrower—limited to its members only—does not

mean its interests are materially distinct from the State Board’s. Put another way,

the State Board’s broader interest in the rights of all voters includes DPI’s narrower

interest in the rights of its members, and the State Board’s effort to defend the Ballot

Receipt Statute will inevitably include defending the ability of DPI’s members to have

their ballots counted after Election Day.

A decision of the Seventh Circuit in an analogous case supports the conclusion

that DPI and the State Board share the same goal such that the intermediate

adequacy standard should apply. In 2020, a district court in Wisconsin found that a

state entity charged with defending a state election law is, by default, defending the

narrower interests of partisan voters. If the governmental entity’s mission “include[s]

ensuring that the valid ballot of every voter—Democratic, Republican or other—is

counted,” then the governmental entity has the same goal as a political party seeking

to intervene. Feehan, 2020 WL 7630419 at 12–13. Based on this conclusion, the

Wisconsin district court applied the intermediate standard for determining adequacy

of representation. Id. at 14.

DPI cites several cases in support of its argument that the lenient default

standard applies, but that authority is distinguishable. In Berger v. North Carolina

State Conference of the NAACP, for example, the entity seeking to intervene was the

state legislature, another governmental entity authorized by state law to intervene

in the litigation. 142 S. Ct. 2191, 2202 (2022) (“North Carolina has expressly

authorized the legislative leaders to defend the State’s practical interests in litigation

of this sort.”). But DPI is not a state entity, of course, and no Illinois statute expressly

grants DPI authority to intervene in litigation of this sort.

Driftless is also distinguishable. In that case, the electrical transmission

companies seeking to intervene had a distinct interest from the governmental entity

that was a party to the case: namely, the transmission companies owned and

maintained the facility at issue, and because two of the counts in the case affected

the transmission company alone, the company’s interests could not be adequately

defended by the relevant governmental entity. 969 F.3d at 748. In contrast, DPI does

not have a property interest in votes cast after Election Day, and Plaintiff asserts no

counts against DPI alone. Driftless does not, therefore, mandate a more lenient

standard for assessing whether DPI has a right to intervene in this case.

DPI and the State Board share the same goal in this case: to defend the

lawfulness of the Ballot Receipt Statute. A finding that the Ballot Receipt Statute is

lawful would preserve for all voters—including DPI’s voters—the voting-and-

counting process supported by DPI. Accordingly, because DPI and the State Board

share the same goal, the Court finds that the intermediate standard for determining

the adequacy of representation governs DPI’s motion to intervene as of right.

b. DPI fails to show under the intermediate standard that

Defendants’ representation is inadequate.

Under the intermediate standard for determining adequacy of representation,

a rebuttable presumption of adequate representation applies and requires that a

proposed intervenor show “some conflict” to intervene. Planned Parenthood, 942 F.3d

at 799. DPI fails to make that showing. In its written submissions, DPI explains

neither how its interest in the action nor its litigation strategy is at odds with the

State Board. DPI argues that, because their interests are not fully aligned, it is

“irrelevant that that DPI and Defendants make similar arguments in their motions

to dismiss.” (Dkt. 35 at 8.) But DPI’s interests are effectively aligned with the State

Board’s: DPI’s interests are merely narrower than the State Board’s. It is thus

significant–and dispositive—that DPI’s arguments on the motion to dismiss are

practically identical to those made by Defendants.

Because DPI fails to point to any conflict with Defendants, and because DPI’s

smaller circle of interests is concentric with Defendants’ larger one, DPI fails to meet

the requirements of the intermediate standard for resolving motions to intervene. See

Mi Familia Vota v. Hobbs, No. CV-22-00509-PHX-SRB (D. Ariz. June 23, 2022)

(“Movants fail to grapple with binding precedent imposing a strong presumption of

adequacy under the instant circumstances . . . . Movants ignore that at this juncture,

Defendants and Movants seek the same ‘ultimate objective.’ ”). Because Defendants’

representation of DPI’s interest is adequate, DPI’s motion to intervene as of right

under Rule 24(a) is denied.

B. Permissive Intervention

DPI also seeks permission to intervene under Rule 24(b). Permissive

intervention may be granted to anyone who “has a claim or defense that shares with

the main action a common question of law or fact.” Whether to allow permissive

intervention is within the sound discretion of the district court. Planned Parenthood,

942 F.3d at 803. To that end, district courts may consider a wide variety of factors,

including interests of case management and the effect of intervention on the timely

resolution of the action. And although courts may not deny permissive intervention

solely because a proposed intervenor failed to meet the requirements for intervention

as of right under Rule 24(a), the factors for intervention as of right may be considered

in when considering a request to intervene by permission. Id. at 804.

Even if DPI has a common claim or defense, equitable considerations weigh

against granting the motion for permissive intervention. Allowing permissive

intervention would likely further impede the timely resolution of the action; indeed,

the contested motion to intervene has already required the Court to divert resources

away from the substantive arguments of the parties. Given that this is an election-

year case about an election law, it is important to resolve the matter quickly so that

the 2022 Illinois elections can be administered with certainty. Although DPI filed its

motion to intervene promptly, to be sure, the timing of DPI’s efforts does not change

the fact that this case needs to be resolved promptly and that adding another party

would hinder that goal.

Additional support for denying permissive intervention can be drawn from the

factors for mandatory intervention under Rule 24(a), which, although not controlling,

are nonetheless instructive. DPI’s interest in the litigation is categorically the same

as Defendants’ interest. If anything, DPI’s narrower interest in defending the ballot

receipt statute on behalf of Democratic voters make it a less ideal candidate to defend

the statute than the State Board, which is bound to consider the interests of all voters.

Moreover, DPI, by its own admission, makes functionally the same legal arguments

as Defendants in its proposed motion to dismiss. Because DPI is interested only in a

subset of Illinois voters yet makes functionally the same argument as Defendants in

time-sensitive litigation, the Court finds that the interest of moving this case forward

expeditiously is better served by avoiding the burdens inherent in adding a party at

this stage. Accordingly, the Court denies DPI’s motion for permissive intervention

under Rule 24(b).

C. DPI May Proceed as an Amicus Curiae

Although the Court denies DPI’s motion to intervene as a party, the Court will

entertain DPI’s arguments in support of Defendants’ motion to dismiss if DPI wishes

to proceed as an amicus curiae. Although the Federal Rules of Civil Procedure do not

explicitly allow amicus curiae briefs in the district court, they also do not explicitly

prohibit the practice, and some district courts have held that they can entertain

arguments from an amicus. See, e.g., Recht v. Justice, No. 5:20 CV-90, 2020 WL

6109426, at *1 (N.D. W. Va. June 9, 2020); Bounty Minerals, LLC v. Chesapeake

Exploration, LLC, No. 5:17cv1695, 2019 WL 7048981, at *10 (N.D. Ohio Dec. 23,

2019); Jin v. Ministry of State Security, 557 F. Supp. 2d 131, 136 (D.D.C. 2008); NGV

Gaming, Ltd. v. Upstream Point Molate, LLC, 355 F. Supp. 2d 1061, 1067 (N.D. Cal.

2005).

In Feehan v. Wis. Elec. Comm’n, a case in which the district court, as here,

denied a political party’s motion to intervene, the court allowed the political party to

make its arguments opposing injunctive relief by way of an amicus brief. 2020 WL

7630419 (E.D. Wis.) (Order Denying Motion to Intervene). Because the court’s

approach in Feehan reasonably sought to achieve a balance between the sound

application of procedural rules and affording a political party the opportunity to be

heard on a matter of public concern, the Court will follow suit here. If DPI seeks to

have the Court consider the arguments it has already proposed (see Dkt. 44, 45)

relating to Defendants’ motion for partial summary judgment, DPI may inform the

Court of its preference by way of a statement filed as a separate docket entry.

IV. CONCLUSION

DPI’s motion to intervene under Rules 24(a) and 24(b) of the Federal Rules of

Civil Procedure is denied. If DPI so chooses, the Court will instead consider DPI’s

arguments in favor of the motion to dismiss as an amicus brief.

SO ORDERED in No. 22-cv-02754.

Date: October 11, 2022 (oc) Uuae

JO F. KNESS

United States District Judge

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