Amicus Curiae Brief — Philip E. Berger, et al., Petitioners v. North Carolina State Conference of the NAACP, et al.
Supreme Court briefFeb 16, 2022
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No. 21-248
IN THE
Supreme Court of the United States
————
PHILIP E. BERGER, et al.,
Petitioners,
v.
NORTH CAROLINA STATE CONFERENCE
OF THE NAACP, et al.,
Respondents.
————
On Writ of Certiorari to the
United States Court of Appeals
for the Fourth Circuit
————
BRIEF OF FEDERAL COURTS SCHOLARS
AS AMICI CURIAE
IN SUPPORT OF RESPONDENTS
————
KATHLEEN R. HARTNETT
COOLEY LLP
3 Embarcadero Center
20th Floor
San Francisco, CA 94111
(415) 693-2000
ADAM S. GERSHENSON
Counsel of Record
COOLEY LLP
500 Boylston Street
Boston, MA 02116
(617) 937-2300
agershenson@cooley.com
MATT K. NGUYEN
COOLEY LLP
1299 Pennsylvania Avenue, NW
Washington, DC 20004
(202) 842-7800
PATRICK HAYDEN
KATELYN KANG
COOLEY LLP
55 Hudson Yards
New York, NY 10001
(212) 479-6000
Counsel for Amici Curiae
February 16, 2022
WILSON-EPES PRINTING CO., INC. – (202) 789-0096 – WASHINGTON, D.C. 20002
i
TABLE OF CONTENTS
INTEREST OF AMICI CURIAE ............................... 1
INTRODUCTION AND SUMMARY OF
ARGUMENT .............................................................. 1
ARGUMENT .............................................................. 5
I.
II.
Petitioners’ Attempted Joinder Is Not
“Intervention” Per The Text, History, Or
Purpose of Rule 24(a); Instead, It Is An
Attempt At Double Representation .................6
A.
State Law Cannot Require Federal
Courts To Allow Petitioners’
Intervention As Additional Agents Of
An Existing Party ..................................7
B.
Intervention Is Available Only To NonParties With Interests Distinct From
The Existing Parties, Which Petitioners
Are Not ...................................................9
Even If The Court Views Petitioners’ Motion
As Cognizable Under Rule 24, The District
Court Properly Denied Intervention .............17
A.
Petitioners Lack A Sufficiently Distinct
Interest To Intervene As Of Right
Under Rule 24 ......................................17
B.
Rule 24’s Correspondence To Rule 19
Concerning Joinder Confirms That
Intervention As Of Right Is Not
Warranted ............................................20
C.
Granting An Intervention Right Here
Would Lead To Aberrant Results .......22
CONCLUSION ......................................................... 24
APPENDIX: LIST OF AMICI CURIAE .................. 1a
ii
TABLE OF AUTHORITIES
Page(s)
Cases
Arakaki v. Cayetano,
324 F.3d 1078 (9th Cir. 2003)..............................11
Arizonans for Fair Elections v. Hobbs,
335 F.R.D. 269 (D. Ariz. 2020) ..............................8
Arizonans for Official English v. Arizona ,
520 U.S. 43 (1997)................................................13
Ashcroft v. Iqbal,
556 U.S. 662 (2009) ..............................................23
Bottoms v. Dresser Indus., Inc.,
797 F.2d 869 (10th Cir. 1986)..............................18
Burns v. Lawther,
53 F.3d 1237 (11th Cir. 1995)..............................20
Bus. Guides, Inc. v. Chromatic
Commc’ns Enters., Inc.,
498 U.S. 533 (1991) ................................................9
Cascade Nat. Gas Corp. v. El Paso Nat.
Gas Co.,
386 U.S. 129 (1967) ..............................................11
Cooter & Gell v. Hartmarx Corp.,
496 U.S. 384 (1990) ..............................................14
Del. Valley Citizens’ Council for Clean
Air v. Com. of Pa.,
674 F.2d 970 (3d Cir. 1982) .................................18
iii
TABLE OF AUTHORITIES
(continued)
Page(s)
Devlin v. Scardelletti,
536 U.S. 1 (2002)..................................................11
Eaton Corp. v. Westport Ins. Co.,
332 F.R.D. 585 (E.D. Wis. 2019) .........................12
United States ex rel. Eisenstein v. City
of New York,
556 U.S. 928 (2009) ..............................................10
Fed. Ins. Co. v. Singing River Health Sys.,
850 F.3d 187 (5th Cir. 2017)................................22
Gasperini v. Ctr. for Human., Inc.,
518 U.S. 415 (1996) ................................................7
In re Gen. Tire & Rubber Co. Sec. Litig.,
726 F.2d 1075 (6th Cir. 1984)..............................18
Gonzalez v. Crosby,
545 U.S. 524 (2005) ................................................9
Great Atl. & Pac. Tea Co. v. Town of E.
Hampton,
178 F.R.D. 39 (E.D.N.Y. 1998) ...................... 17, 19
Hamling v. United States,
418 U.S. 87 (1974)................................................20
iv
TABLE OF AUTHORITIES
(continued)
Page(s)
Haspel & Davis Milling & Planting Co.
v. Bd. of Levee Comm’rs of Orleans
Levee Dist.,
493 F.3d 570 (5th Cir. 2007)................................19
Hollingsworth v. Perry,
570 U.S. 693 (2013) ..............................................13
Horn v. Volcano Water Co.,
13 Cal. 62 (1859) ..................................................18
John Hancock Mut. v. Harris Trust &
Sav. Bank,
510 U.S. 86 (1993)................................................20
Karcher v. May,
484 U.S. 72 (1987)................................ 3, 11, 12, 13
Keith v. Daley,
764 F.2d 1265 (7th Cir. 1985)..........................4, 17
Kentucky v. Graham,
473 U.S. 159 (1985) ..............................................11
Leher v. Consol. Papers, Inc.,
786 F. Supp. 1480 (W.D. Wis. 1992) ...................19
Lewis v. Clarke,
137 S. Ct. 1285 (2017)..........................................13
Lincoln Prop. Co. v. Roche,
546 U.S. 81 (2005)................................................12
v
TABLE OF AUTHORITIES
(continued)
Page(s)
Merrill Lynch, Pierce, Fenner & Smith,
Inc. v. Flanders-Borden,
11 F.4th 12 (1st Cir. 2021)...................................21
Missouri-Kansas Pipe Line Co. v.
United States,
312 U.S. 502 (1941) ........................................14, 15
Mohamad v. Palestinian Auth.,
566 U.S. 449 (2012) ..............................................10
New York v. Consolidated Gas Co.,
253 U.S. 219 (1920) ........................................14, 15
New York v. New York Telephone Co.,
261 U.S. 312 (1923) ..............................................15
Pavelic & LeFlore v. Marvel Ent. Grp.,
493 U.S. 120 (1989) ................................................9
Planned Parenthood of Wisconsin, Inc.
v. Kaul,
942 F.3d 793 (7th Cir. 2019)......................8, 22, 23
Powell v. McCormack,
395 U.S. 486 (1969) ................................................6
Priorities USA v. Nessel,
978 F.3d 976 (6th Cir. 2020)................................13
Raines v. Byrd,
521 U.S. 811 (1997) ................................................6
vi
TABLE OF AUTHORITIES
(continued)
Page(s)
Reisman v. Caplin,
375 U.S. 440 (1964) ..............................................11
Resol. Tr. Corp. v. City of Bos.,
150 F.R.D. 449 (D. Mass. 1993) ...........................18
Rocca v. Thompson,
223 U.S. 317 (1912) .................................... 3, 10, 12
Ross v. Bernhard,
396 U.S. 531 (1970) ..............................................24
Sam Fox Publishing Co. v. United States,
366 U.S. 683 (1961) ..............................................15
Shady Grove Orthopedic Assocs. v. Allstate
Ins. Co.,
559 U.S. 393 (2010) ................................................7
Sidberry v. Koch,
539 F. Supp. 413 (S.D.N.Y. 1982) .......................19
Smith v. Gale,
144 U.S. 509 (1892) ..............................................18
Southmark Props. v. Charles Hous.
Corp.,
742 F.2d 862 (5th Cir. 1984)................................11
Virginia House of Delegates v. BethuneHill,
139 S. Ct. 1945 (2019)............................................6
vii
TABLE OF AUTHORITIES
(continued)
Page(s)
Statutes
28 U.S.C.
§ 2072 .....................................................................7
§ 2403(b) ...............................................................16
N.C. Gen. Stat.
§ 120-32.6(b) ......................................... 3, 4, 8, 9, 12
Rules
Federal Rules of Civil Procedure
1 ............................................................................23
11 ..........................................................................14
17 ..........................................................................12
19 ..............................................................20, 21, 22
24 .................................................................. passim
25 ....................................................................12, 13
Other Authorities
Black’s Law Dictionary (3d. ed. 1933) ................10, 12
1 Steven S. Gensler & Lumen N.
Mulligan, Federal Rules of Civil
Procedure Rules and Commentary
(2021 ed.) ..............................................................20
Anthony Johnstone, A State Is A “They,” Not
an “It”: Intrastate Conflicts in Multistate
Challenges to the Affordable Care Act,
2019 B.Y.U. L. Rev. 1471 (2019) .........................23
viii
TABLE OF AUTHORITIES
(continued)
Page(s)
Benjamin Kaplan, 77 Harv. L. Rev. 601
(1964) ....................................................................13
James Wm. Moore & Edward H. Levi,
Federal Intervention I. The Right to
Intervene and Reorganization, 45
Yale L.J. 565 (1936) .............................................11
Lumen N. Mulligan & Glen Staszewski,
Civil Rules Interpretive Theory, 101
Minn. L. Rev. 2167, 2227–28 (2017) ...................14
Caleb Nelson, Intervention, 106 Va. L.
Rev. 271, 329–36 (2020).......................................20
7C Wright & Miller, Federal Practice
and Procedure § 1909 (3d ed. 2021) ....................17
INTEREST OF AMICI CURIAE 1
Amici listed in the Appendix are professors
who teach and write in the fields of federal
jurisdiction, civil procedure, and constitutional
law. Amici have expertise in analyzing, and a strong
interest in, a fair and coherent legal system. Amici
believe this case involves an improper attempt by an
existing party to duplicate its representation under
the guise of mandatory intervention, in direct conflict
with the text, history, and purpose of Federal Rule of
Civil Procedure 24(a) (“Rule 24(a)”). Amici all agree
that the Fourth Circuit’s decision should be affirmed
or the writ of certiorari should be dismissed as
improvidently granted.
INTRODUCTION AND SUMMARY OF
ARGUMENT
Petitioners assert an unfounded right to double
representation of an existing party, which this Court
should reject.
Specifically, Petitioners seek to
participate in this case as “additional agents of the
State,” Pet. Br. at 34, where the State’s agents
(defendants) are already defending the challenged
law.
Petitioners identify no daylight between
defendants’ identity or interests and their own. To
the contrary, both Petitioners and defendants seek to
defend the same law, in the same case, on behalf of
the same real party in interest—the State of North
Carolina. Yet Petitioners claim that Rule 24(a) grants
them—or anyone else state law may designate—the
The parties have consented to the filing of this brief.
Pursuant to Rule 37.6, amici affirm that no counsel for a party
authored this brief in whole or in part, nor did any person or
entity, other than amici or their counsel, make a monetary
contribution to the preparation or submission of this brief.
1
2
power to intervene, as of right, as the State’s
“additional” representative.
The courts below
properly rejected this view as contrary to black letter
law, the Federal Rules of Civil Procedure, and the
very purpose of intervention. This Court should do
the same.
To be clear, this case does not involve a state
legislature (or legislator) seeking to participate in
litigation based on a claimed legislative institutional
interest separate from the interest of the State.
Indeed, in seeking this Court’s review, Petitioners
explicitly disclaimed “the General Assembly’s
institutional interest” as a potential basis for
intervention. Pet. at 18 n.4. Once again in their
opening brief, Petitioners assiduously avoid invoking
such an interest. Thus, whatever questions such an
alleged “institutional interest” might raise in some
other case—whether, for example, that interest might
lend a state legislature standing or a right to
intervene in cases challenging state law—this is not
the vehicle to address such questions because they are
not before the Court.
With respect to the question presented here—
whether Rule 24(a) requires a federal court to permit
two agents of the same party in interest to represent
the same interest in the same case—text, history, and
precedent all indicate that the answer is no. As a
textual matter, Rule 24 distinguishes between a
“movant” and “existing parties,” recognizing from the
outset a firm line between third parties who may be
eligible for intervention (“movants”) and “existing
parties” who are not even contemplated as
intervenors because they are already in the case. Fed.
R. Civ. P. 24(a). The plain meaning of every relevant
3
term in Rule 24 confirms this textual interpretation—
that “intervention” means to “interpose in, or become
a party to, a proceeding already instituted.” Rocca v.
Thompson, 223 U.S. 317, 330 (1912). Rule 24’s
history and precedents accord with this text. From
the equitable precedent the Rule codified in 1938
through a series of amendments, Rule 24 has
consistently reflected that it provides intervention by
right only to third parties—with “party” defined as a
real party in interest, rather than some other agent of
the existing party appearing under a different name
or title.
Petitioners concede that, under basic principles
of preemption, state law cannot supplant the Federal
Rules or otherwise force a federal court to permit their
intervention as of right. See Pet. Br. at 21. Yet
Petitioners argue that N.C. General Statutes § 12032.6 gives them the right to act “as agents of the
State”
when
a
plaintiff
challenges
the
constitutionality of a state law. Pet. Br. at 1. Rule
24(a)(2), however, does not permit a party to
intervene in a case where it is already represented.
Thus, to the extent that the cited state statute is
relevant at all, it simply confirms that Petitioners and
the existing defendants seek, impermissibly, to
represent the same party: “the State of North
Carolina.” N.C. Gen. Stat. § 120-32.6(b). Because the
State of North Carolina is already an existing “real
party in interest,” represented by the existing
defendants sued in their official capacities, Karcher v.
May, 484 U.S. 72, 78 (1987), Petitioners may not
misuse Rule 24 to join this case as an additional
representative of the State.
4
While Petitioners invoke principles of
federalism throughout their opening brief, those
principles would be undermined—not vindicated—by
Petitioners’ view of mandatory intervention. In
Petitioners’ view, a federal court must permit the
intervention of any official designated to defend state
law as an “agent” of the State, even while other
officials are actively defending it. In that scenario, a
federal court is necessarily forced to guess which
official (if any) is, in fact, speaking authoritatively for
a State—in essence, requiring a federal court to
pronounce a State’s “true” position in litigation.
Under any sensible vision of federalism, that is the
last thing a federal court should do.
Finally, even if Petitioners’ attempt to
duplicate the State’s representation were viewed as
potential intervention, the decision below would still
be properly affirmed on the independent ground that
Petitioners have failed to advance any “interest”
distinct from those already represented, as Rule 24(a)
requires. Courts have long held that a movant’s
intervention “must be based on a right that belongs to
the proposed intervenor rather than to an existing
party in the suit.” Keith v. Daley, 764 F.2d 1265, 1268
(7th Cir. 1985). Yet Petitioners’ interest here is, by
their own admission and interpretation of North
Carolina law, that of an existing party. Petitioners
are nothing more than additional “agents of the
State,” N.C. Gen. Stat. § 120-32.6(b)—a party already
represented by other agents. Whether state law could
theoretically grant a state official a distinct “interest”
within the meaning of Rule 24(a) is not at issue in this
case. North Carolina law indicates that Petitioners
5
possess exactly the same interest as the existing
defendants—and Petitioners claim nothing more.
Ultimately, this case is not about a request for
intervention, but for duplication. To allow one party
to amplify its own voice through multiple
representatives in the same case would inject
needless complexity, cost, and inefficiency into a
wealth of cases—precisely the opposite of what the
Federal Rules are designed to accomplish. Because
Rule 24(a) does not require federal courts to accept
such a bid for double representation, this Court
should affirm or dismiss the writ of certiorari as
improvidently granted.
ARGUMENT
Rule 24 does not permit double representation
of the party in interest. Yet Petitioners seek to appear
in this case, alongside the Attorney General of North
Carolina, as “additional agents of the State.” Pet. Br.
at 34. The State, which is already a represented party
in the case, cannot now “intervene” in its own case.
While Petitioners in the courts below referenced
ostensibly unique interests “of the Legislature,” J.A.
159 (emphasis omitted), they have now clarified that,
even if such an interest exists, they do not seek to
appear on the basis of “the General Assembly’s
institutional interest.” Pet. at 18 n.4. They aim to
intervene as the State in a case where the State is
already a represented party.
As a result, this is not a case in which the Court
must consider whether any unique institutional
interests of a legislature might warrant intervention
alongside executive actors. In other cases, this Court
has weighed the interests of legislators in defending
6
the laws they helped enact, typically as a matter of
Article III standing. See Virginia House of Delegates
v. Bethune-Hill, 139 S. Ct. 1945, 1951–53 (2019)
(considering whether one house of Virginia
legislature has standing to appeal adverse ruling); cf.
Raines v. Byrd, 521 U.S. 811, 830 (1997) (holding that
six Members of Congress lacked standing to challenge
enactment of Line Item Veto Act); Powell v.
McCormack, 395 U.S. 486, 496 (1969) (holding that
Member of Congress may bring constitutional
challenge to his exclusion from House of
Representatives). Such issues regarding legislative
institutional interests have sparked debate and
disagreement, but here they are entirely absent.
Rather, this case simply concerns whether one party
in interest is entitled to double representation
through multiple “agents.” There is no basis in law
for such duplication, and Petitioners’ bid should be
denied.
I.
Petitioners’ Attempted Joinder Is Not
“Intervention” Per The Text, History, Or
Purpose of Rule 24(a); Instead, It Is An
Attempt At Double Representation
Only non-parties may seek intervention. In
intervention cases, this Court must evaluate whether
“existing parties adequately represent” a movant’s
“interest.” Fed. R. Civ. P. 24(a)(2). This case presents
a different and much simpler question:
are
“additional agents” of an existing party eligible at all
for mandatory intervention under Rule 24(a)? The
answer is no.
Rule 24(a) does not permit intervention in one’s
own case. Rather, its text and history illustrate that
mandatory intervention is limited to third parties
7
distinct from existing parties to a case—not agents of
the same parties who are already represented,
asserting the same interest, and pursuing the same
goal.
This Court has never sanctioned double
representation of the same party under Rule 24.
Here, too, the Court should reject Petitioners’
attempts to upend over eighty years of Rule 24
precedent.
A. State Law Cannot Require Federal
Courts
To
Allow
Petitioners’
Intervention As Additional Agents Of An
Existing Party
Under the Supremacy Clause and the Rules
Enabling Act of 1934, federal law alone establishes
who may intervene in federal court. “Congress has
undoubted power to supplant state law, and
undoubted power to prescribe rules for the courts it
has created, so long as those rules regulate matters
rationally capable of classification as procedure.”
Shady Grove Orthopedic Assocs. v. Allstate Ins. Co.,
559 U.S. 393, 406 (2010) (internal quotation marks
omitted). Accordingly, “[c]oncerning matters covered
by the Federal Rules of Civil Procedure” as here, “[i]t
is settled that if the Rule in point is consonant with
the Rules Enabling Act, 28 U.S.C. § 2072, and the
Constitution, the Federal Rule applies regardless of
contrary state law.” Gasperini v. Ctr. for Human.,
Inc., 518 U.S. 415, 427 n.7 (1996). As Petitioners now
concede, Pet. Br. at 21, federal law thus preempts
North Carolina law to the extent that state law
purports to supplant or otherwise modify federal
courts’ independent assessment as to whether
mandatory intervention is warranted under Rule 24.
8
North Carolina law is instructive, however, in
confirming that Petitioners act here only as
additional agents of the State of North Carolina—not
as would-be intervenors with any distinct interest in
this case. Petitioners contend that North Carolina
law allows them, in cases like this one addressing “the
validity or constitutionality of an act of the General
Assembly,” to “[a]ct[] on [b]ehalf of the State of North
Carolina” “as agents of the State,” and be “deemed to
be the State of North Carolina.” N.C. Gen. Stat. § 12032.6(b). Under Petitioners’ interpretation, the statute
thus leaves no gap between Petitioners and the
existing defendants already in this case. Petitioners,
like defendants, serve as no more than “agents” of the
State. Id. The statute does not identify or purport to
create any independent interest that legislators may
have in defending the constitutionality of their laws.
Accordingly, even if federal courts were required to
consider North Carolina law in evaluating
Petitioners’ request, the statute itself, as construed by
Petitioners, forecloses any claim that Petitioners have
any
distinct
identity
justifying
mandatory
intervention in this case.
See, e.g., Planned
Parenthood of Wisconsin, Inc. v. Kaul , 942 F.3d 793,
801 (7th Cir. 2019) (denying intervention where “[t]he
[l]egislature” not only “shar[es] a goal with the
Attorney General,” but also “intends to represent the
same client—the State of Wisconsin”); Arizonans for
Fair Elections v. Hobbs, 335 F.R.D. 269, 275 (D. Ariz.
2020) (denying intervention where proposed
intervenors claimed an interest “in ‘upholding the
Arizona Constitution and the laws that implement
it,’” while the “State, represented by the Attorney
General, advanced an interest in ‘defending the
constitutionality of its laws’ and ‘structuring its
9
elections,’” as “[i]t is difficult to see how Proposed
Intervenors’ interest diverges from the State’s, and
the State is already a party to this case”).2
B. Intervention Is Available Only To NonParties With Interests Distinct From
The Existing Parties, Which Petitioners
Are Not
In applying the Federal Rules of Civil
Procedure, this Court looks to the “substance” of an
underlying motion, even when a movant has “labeled”
or “couched” its language in a particular rule.
Gonzalez v. Crosby, 545 U.S. 524, 531 (2005). Here,
what Petitioners have called “intervention” is, in fact,
an unprecedented request to duplicate representation
of an existing party. The text and history of Rule 24
make clear that intervention cannot be distorted or
reinvented to accomplish this objective. Mandatory
intervention is limited to third parties distinct from
existing parties to a suit, not additional “agents” of an
existing party. N.C. Gen. Stat. § 120-32.6(b).
i. Rule 24’s Plain Meaning Makes
Clear That Only Non-Parties Can
Intervene
This Court “give[s] the Federal Rules of Civil
Procedure their plain meaning.” Pavelic & LeFlore v.
Marvel Ent. Grp., 493 U.S. 120, 123 (1989); accord
Bus. Guides, Inc. v. Chromatic Commc’ns Enters.,
The parties dispute whether North Carolina law does, in fact,
authorize legislators to intervene on behalf of the State. See
NAACP Resp. Br. at 45–46. For purposes of this analysis, amici
address Petitioners’ attempt to intervene based on Petitioners’
own interpretation of North Carolina law and do not opine on
whether that interpretation is correct.
2
10
Inc., 498 U.S. 533, 540–41 (1991). This Court also
“generally seek[s] to respect [drafters’] decision to use
different terms to describe different categories of
people or things.” Mohamad v. Palestinian Auth., 566
U.S. 449, 456 (2012).
Here, the text of Rule 24 expressly
distinguishes between “movants” and “existing
parties,” and explains that mandatory intervention is
not available where “existing parties adequately
represent” a “movant’s” interest. Fed. R. Civ. P.
24(a)(2). That text thus makes clear that intervention
as of right is available only to non-party “movants,”
and not “existing parties” or their agents, such as
Petitioners.
This understanding echoes the relevant
definitions of the terms “intervention” and “party,” as
embodied in Rule 24 and recognized in this Court’s
precedents.
A year before Rule 24 was first
promulgated, Black’s Law Dictionary defined
“intervention” as a “proceeding in a suit or action by
which a third person is permitted by the court to make
Intervention, Black’s Law
himself a party.”
Dictionary (3d. ed. 1933). Looking to Webster’s and
the Century Dictionary, this Court has similarly held
that “[l]iterally, to intervene means, as the derivation
of the word indicates, to come between,” and “covers
the right of one to interpose in, or become a party to,
a proceeding already instituted.” Rocca, 223 U.S. at
330; see United States ex rel. Eisenstein v. City of
New York, 556 U.S. 928, 933–34 (2009) (holding that
“intervention” is “[t]he legal procedure by which . . . a
third party is allowed to become a party to the
litigation” and “assume the rights and burdens
attendant to full party status”).
This Court’s
11
precedents express the same view: “intervention as of
right” is warranted only when “a third party asserts a
right that would be lost absent intervention.”
Cascade Nat. Gas Corp. v. El Paso Nat. Gas Co., 386
U.S. 129, 133–34 (1967) (emphasis added); see also,
e.g., Reisman v. Caplin, 375 U.S. 440, 449 (1964)
(“[T]hird parties might intervene to protect their
interests.”); Devlin v. Scardelletti, 536 U.S. 1, 15
(2002) (Scalia, J., dissenting) (“[T]hose who
intervene” do so “through third-party practice.”). 3
As this Court has explained in suits against
government officers, “[t]he concept of ‘legal personage’
is a practical means of identifying the real interests
at stake in a lawsuit,” and “the real party in interest
in an official-capacity suit is the entity represented.”
Karcher, 484 U.S. at 78; see also Kentucky v.
Graham, 473 U.S. 159, 165–66 (1985) (holding that
suits against government officers in their official
capacities “generally represent only another way of
pleading an action against an entity of which an
officer is an agent,” and “an official-capacity suit is, in
all respects other than name, to be treated as a suit
against the entity”). The term “party” “does not refer
to formal or paper parties, but to parties in interest.”
Southmark Props. v. Charles Hous. Corp., 742 F.2d
See also, e.g., Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th
Cir. 2003) (holding that, when a movant “share[s] the same
ultimate objective [as an existing party], differences in litigation
strategy do not normally justify intervention”). Authors of
leading treatises have likewise agreed that intervention
concerns whether “non-parties may come into a pending
litigation to protect interests that are jeopardized thereby or to
expedite the hearing of a claim or defense.” James Wm. Moore
& Edward H. Levi, Federal Intervention I. The Right to
Intervene and Reorganization, 45 Yale L.J. 565, 565 (1936).
3
12
862, 869 (5th Cir. 1984) (internal quotation marks
omitted).
Therefore, to determine whether an
individual or entity is an “existing party” under Rule
24, a court must necessarily examine whether the
person or entity seeks to represent the same real
party in interest already participating in the case. 4
These definitions confirm that “intervention”
under Rule 24 is simply not what Petitioners seek to
do. Because the existing defendants are members of
the State Board sued in their official capacities, the
“real party in interest” is the State of North Carolina.
See Karcher, 484 U.S. at 78. The State already has
every “right to make defense, control the proceedings,
or appeal from the judgment.” Party, Black’s Law
Dictionary (3d. ed. 1933). And since Petitioners seek
to appear only “as agents of the State,” N.C. Gen. Stat.
§ 120-32.6(b), they are not third parties and cannot
“interpose in” a case in which their principal—the
State—is already a party, Rocca, 223 U.S. at 330.
Rule 24(a) thus provides no basis for Petitioners to
serve as additional representatives of an existing
party.
Although Rule 17 uses the concept of a “real party in
interest” to refer to plaintiffs, see Lincoln Prop. Co. v. Roche, 546
U.S. 81, 90 (2005), nothing in Rule 17 (or the Rules in general)
prohibits this concept from also applying to defendants, see
Eaton Corp. v. Westport Ins. Co., 332 F.R.D. 585, 587 (E.D. Wis.
2019) (explaining that “it does not follow that the concept of real
party in interest . . . [can never] apply to defendants”). This
official capacity suit is one of those instances. Indeed, the Rules
advisory committee noted that “[f]ormer Rule 25(d)(2) is
transferred to become Rule 17(d) because it deals with
designation of a public officer, not substitution.” Fed. R. Civ. P.
17, advisory committee’s note to 2007 amendment.
4
13
This is not a case in which the State’s primary
legal representative has refused to defend a law or
appeal an adverse ruling, such that the party-ininterest is effectively without representation to
defend the intervenor’s asserted interest. Cf., e.g.,
Hollingsworth v. Perry, 570 U.S. 693 (2013);
Arizonans for Official English v. Arizona , 520 U.S. 43
(1997); Karcher, 484 U.S. 72; Priorities USA v.
Nessel, 978 F.3d 976, 978 (6th Cir. 2020). In that
context, one might question whether an intervenor
seeking to defend a law is, in fact, the same “real party
in interest” as a governmental party who has refused
to do so. In such suits, Rule 25(d) substitution—not
Rule 24(a) intervention—is the better course precisely
because there is a change in representation and not a
change in a real party in interest. See Lewis v.
Clarke, 137 S. Ct. 1285, 1291–92 (2017) (“In an
official-capacity claim, the relief sought is only
nominally against the official and in fact is against
the official’s office and thus the sovereign itself. This
is why, when officials sued in their official capacities
leave office, their successors automatically assume
their role in the litigation. The real party in interest
is the government entity, not the named official.”
(citations omitted)).5 But there is no dispute here that
the existing defendants have defended S.B. 824 from
the outset of this litigation, at both the district court
and appellate levels, with vigor and success. Thus,
there is no basis here to conclude anything other than
Indeed, a focus on the real party in interest in official
capacity suits was the explicit goal of the Rules drafters in their
1961 amendments to Rule 25(d). See Fed. R. Civ. P. 25, advisory
committee note to 1961 amendment; Benjamin Kaplan,
5
Amendments of the Federal Rules of Civil Procedure, 1961-1963
(i), 77 Harv. L. Rev. 601, 608 (1964).
14
that Petitioners seek to represent the same real party
in interest as the existing defendants. To do that
would require substitution, not duplication.
ii. Rule 24’s Historical Context
Precludes
Intervention
By
“Additional Agents” Asserting
The Same Interest
The history of Rule 24 confirms that—unlike
Petitioners—an intervenor must be distinct from an
existing party. This Court’s interpretation of any
revised Federal Rule “must be guided, in part, by an
understanding of the deficiencies in the original
version of [the Rule] that led to its revision,” Cooter &
Gell v. Hartmarx Corp., 496 U.S. 384, 392 (1990)
(discussing Rule 11); see also Lumen N. Mulligan &
Glen Staszewski, Civil Rules Interpretive Theory, 101
Minn. L. Rev. 2167, 2227–28 (2017) (noting that
legislative history and purpose are especially
germane in interpreting the Federal Rules). And
because Rule 24 “codif[ied]” the “general doctrines of
intervention,” Missouri-Kansas Pipe Line Co. v.
United States, 312 U.S. 502, 508 (1941), this Court’s
pre-Rule 24 precedents are instructive in interpreting
the Rule.
These
precedents
preclude
Petitioners’
attempted intervention. In New York v. Consolidated
Gas Co., 253 U.S. 219 (1920), for example, a private
gas company challenged the constitutionality of a
New York gas law, naming as defendants New York’s
Public Service Commission, a district attorney, and
the New York Attorney General. Id. at 220. The City
of New York attempted to intervene, but this Court
affirmed the district court’s denial of intervention
because the existing governmental defendants
15
“properly represented” the City’s asserted interests.
Id. In New York v. New York Telephone Co., 261 U.S.
312 (1923), the Court applied the same logic, holding
that a district court properly denied the City of New
York’s motion to intervene in a constitutional
challenge to state and municipal telephone rates,
where the Attorney General and the New York Public
Service Commission were already defending the suit.
Id. at 316–17. The Court stressed that “[t]here is
nothing in this case to show that the Public Service
Commission will not fully and properly represent the
subscribers resident in New York City,” and that the
City’s “interests and those of its residents were fully
represented under the law and protected by those who
had been made defendants.” Id. at 316. Thus, under
the “general doctrines of intervention” that Rule 24
adopted, Missouri-Kansas Pipe Line Co., 312 U.S. at
508, this Court has long held that governmental
actors may not intervene as additional agents of an
existing party defending state law.
From its inception, Rule 24 codified that
understanding. In 1938, Rule 24(a) was adopted,
providing for intervention as of right when “the
representation of the applicant’s interest by existing
parties is or may be inadequate and the applicant is
or may be bound by a judgment in the action.” Fed.
R. Civ. P. 24(a)(2) (1938). Interpreting this version of
Rule 24(a)(2) in Sam Fox Publishing Co. v. United
States, 366 U.S. 683 (1961), this Court held that a
would-be intervenor could not intervene as of right
because, inter alia, it had “the same interests as
[existing] appellants,” whose representation was
“entirely adequate.” Id. at 692 & n.4. And when Rule
24(a)(2) was amended in 1966, the requirement that
16
an intervenor stand apart from existing parties
became even stronger: the amendments required a
movant to establish that its interest “is”—not “is or
may be”—inadequately represented by existing
parties. Fed. R. Civ. P. 24(a)(2)(1966).6
iii. Petitioners’ Bid To Intervene
Contravenes Rule 24’s Purpose
The text, history, and interpretative heritage of
Rule 24 all resonate with the Rule’s purpose.
Intervention as of right occurs only where the
movant’s exclusion would “impair or impede the
movant’s ability to protect its interest, unless existing
parties adequately represent that interest.” Fed. R.
Civ. P. 24(a). In other words, the purpose of the rule
is to provide a mechanism to protect a movant’s
discrete interests from those of existing parties to a
case.
From its codification over 80 years ago through
decades of amendments, Rule 24 has provided that
intervention as of right is available only to those who
are, at a minimum, distinct from existing parties.
This is so because only in such circumstances are a
movant’s discrete interests even potentially
imperiled. By contrast, where, as here, a movant
seeks to represent a real party in interest that is
already represented in the case, then “as a practical
matter” the failure to intervene cannot “impair or
impede” any discrete interest held by the movant—
both are agents of the same principal. Fed. R. Civ. P.
24(a)(2). In such a scenario, intervention solves no
In 1976, Congress enacted what is today 28 U.S.C. § 2403(b),
which allows intervention as of right where a “State or any
agency, officer, or employee thereof is not a party.”
6
17
existing problem and offers no benefit to the court or
the litigants. Instead, throwing open the doors to
these multiple agents would only unduly amplify the
voice of one side of the dispute. Rule 24’s very
purpose, like its text and history, affirms that
Petitioners claiming to be additional agents of the
State are not pursuing “intervention” in any true
sense of the word. The district court properly denied
Petitioners’ motion to intervene.
II.
Even If The Court Views Petitioners’ Motion As
Cognizable Under Rule 24, The District Court
Properly Denied Intervention
A. Petitioners Lack A Sufficiently Distinct
Interest To Intervene As Of Right Under
Rule 24
Even if Petitioners’ request were viewed as a
bona fide attempt to “intervene,” it would still fail
because Petitioners lack a sufficient asserted
“interest” to establish a right to intervene under Rule
24(a)(2).
As courts and leading treatises have
explained, a would-be intervenor with an interest
identical to that of an existing party generally cannot
intervene under Rule 24(a). 7C Wright & Miller,
Federal Practice and Procedure § 1909 (3d ed. 2021).
Rather, to intervene as of right, a proposed
intervenor’s interest “must be based on a right that
belongs to the proposed intervenor rather than to an
existing party in the suit.” Keith, 764 F.2d at 1268;
see also, e.g., Great Atl. & Pac. Tea Co. v. Town of E.
Hampton, 178 F.R.D. 39, 43 (E.D.N.Y. 1998) (finding
that proposed intervenor needed to demonstrate a
legal interest that differed from existing party’s
interest). This is because intervention is designed to
protect interests which are “of such a direct and
18
immediate character that the intervenor will either
gain or lose by the direct legal operation and effect of
the judgment.” Smith v. Gale, 144 U.S. 509, 518
(1892) (quoting Horn v. Volcano Water Co., 13 Cal. 62,
69 (1859)).
Here, by contrast, Petitioners assert only the
same interest as the existing defendants—that of
defending S.B. 824 as “agents of the State.” See supra
§ I. As such, there is no interest that Petitioners are
“losing” by being denied intervention. See Del. Valley
Citizens’ Council for Clean Air v. Com. of Pa. , 674
F.2d 970, 974 (3d Cir. 1982) (denying intervention
even though legislators had direct interest in
litigation, where court could “find no divergence
between their position and the position of the
Commonwealth on the primary issue involved in the
litigation”).
Indeed, courts have repeatedly denied
intervention where an existing party and a proposed
intervenor share the same interest and ultimate
objective. See, e.g., Bottoms v. Dresser Indus., Inc.,
797 F.2d 869, 872 (10th Cir. 1986) (noting that
intervention is commonly denied “when the objective
of the applicant for intervention is identical to that of
one of the parties”); In re Gen. Tire & Rubber Co. Sec.
Litig., 726 F.2d 1075, 1087 (6th Cir. 1984) (denying
intervention in derivative action under similar
reasoning).7
Nothing in this case warrants a
departure from such precedent.
See also, e.g., Resol. Tr. Corp. v. City of Bos., 150 F.R.D. 449,
452 (D. Mass. 1993) (denying Massachusetts’s motion to
intervene in action against city even though city represented
“only a fraction of Commonwealth citizenry” because “ultimate
7
19
Though Petitioners concede their interest is
identical to that of the existing defendants, they
nevertheless assert that intervention must be allowed
because these defendants’ “incentives may not
necessarily be aligned with Petitioners’.” Pet. Br. at
18. As an initial matter, the suggestion that the
Attorney General lacks sufficient “incentives” to
adequately defend state law is a “startling
accusation,” Pet. App. at 46–47—in effect, it asks the
Court to assume that the Attorney General will not
fulfill his statutory mandate to defend state law.
Such a claim is particularly misplaced here where the
Attorney General has already been defending the law
successfully. But even assuming such a difference in
“incentives” did exist, courts across the country have
consistently held that such a gap would be insufficient
to permit intervention, because their ultimate
interests are aligned. See Great Atl. & Pac. Tea Co.,
178 F.R.D. at 43 (denying intervention even though
proposed intervenor had “different motives” than
defendant “behind their joint interest in defending
the statute”); cf. Haspel & Davis Milling & Planting
Co. v. Bd. of Levee Comm’rs of Orleans Levee Dist. ,
493 F.3d 570, 579 (5th Cir. 2007) (finding that
proposed intervenor’s “ultimate objective” was
identical to existing party’s even though proposed
objective” of proposed intervenor was the same as existing
party’s); Leher v. Consol. Papers, Inc., 786 F. Supp. 1480, 1483
(W.D. Wis. 1992) (denying intervention where existing party was
“pursuing the same goal” as proposed intervenor); Sidberry v.
Koch, 539 F. Supp. 413, 418 (S.D.N.Y. 1982) (denying
intervention where proposed intervenor’s interests were
“identical” to existing party’s).
20
intervenor asserted that its objective was more
expansive than existing party’s).
B. Rule 24’s Correspondence To Rule 19
Concerning Joinder Confirms That
Intervention As Of Right Is Not
Warranted
Rule 19 practice also illustrates that
Petitioners are not proper Rule 24(a) intervenors.
Courts must apply the Federal Rules “in pari
materia.” Hamling v. United States, 418 U.S. 87,
134–35 (1974); see also, e.g., Burns v. Lawther, 53
F.3d 1237, 1241 (11th Cir. 1995) (per curiam) (noting
that interpretation of Federal Rules requires “looking
to the provisions of the whole law” (quoting John
Hancock Mut. v. Harris Trust & Sav. Bank, 510 U.S.
86, 94 (1993))). This rule of construction has special
force when two rules—here, Rules 19(a) and 24(a)—
were intentionally designed to mirror each other.
The Rules’ drafters substantially revised Rule
24(a) for the last time in 1966. See Caleb Nelson,
Intervention, 106 Va. L. Rev. 271, 329–36 (2020)
(providing complete history of intervention practice). 8
At that time, the drafters of Rule 24(a) sought to
harmonize intervention by right with Rule 19
necessary joinder.
Specifically, Rule 24(a) was
amended to clarify that a person “is entitled to
intervene in an action when his position is
The drafters have revised Rule 24 since, such as the inclusion
of Rule 5.1 in 2006, which had the effect of removing language
from Rule 24(c). See 1 Steven S. Gensler & Lumen N. Mulligan,
Federal Rules of Civil Procedure Rules and Commentary 113
(2021 ed.). The relevant provision, however, Rule 24(a)(2), has
not been substantially altered since 1966.
8
21
comparable to that of a person under Rule 19(a)(2)(i)
[mandatory joinder].” Fed. R. Civ. P. 24, advisory
committee note (1966). Accordingly, “[i]ntervention
of right is . . . a kind of counterpart to Rule 19(a)(2)(i)
on joinder of persons needed for a just adjudication:
where, upon motion of a party in an action, an
absentee should be joined so that he may protect his
interest which as a practical matter may be
substantially impaired by the disposition of the
action, he ought to have a right to intervene in the
action on his own motion.” Id. (citing Louisell &
Hazard, Pleading and Procedure: State and Federal
749–50 (1962)). Rule 19, of course, applies only to
“persons . . . [who] must be joined as a party,” Fed. R.
Civ. P. 19(a)(1). That is to say, Rule 19 applies to join
“absent persons” only. Gensler & Mulligan, supra, at
540 (2021 ed.). Likewise here, given that Rule 24(a)
was drafted to correspond to Rule 19(a), Rule 24(a)
applies only to “absent persons,” not to existing
parties.9
Here, disposing of this action without
Petitioners’ intervention as a party would not “as a
practical matter impair or impede [Petitioners’]
ability to protect [their] interest,” Fed. R. Civ. P.
19(a)(1)(B), because that interest is already
represented by the existing defendants, supra § I.10
While Rule 19 often applies, in practice, to join third parties
against their will, its construction applies equally to voluntary
intervention, as the Rules’ drafters’ expressly intended that the
“interest” element of Rule 19(a)(1)(B) and Rule 24(a) be
consistent.
9
See, e.g., Merrill Lynch, Pierce, Fenner & Smith, Inc. v.
Flanders-Borden, 11 F.4th 12, 17 (1st Cir. 2021) (“We have
10
explained that where the interests of an absent party are aligned
closely enough with the interests of an existing party, and where
22
Since Petitioners do not satisfy the criteria for
required parties under Rule 19, any ruling that they
are nonetheless entitled to intervene as of right would
necessarily break the link between the two Rules that
their drafters deliberately created.
That
interpretation cannot be squared with the history or
purpose of the two Rules, which must be read in
harmony.
C. Granting An Intervention Right Here
Would Lead To Aberrant Results
As a practical matter, interpreting Rule 24 to
require intervention where a proposed intervenor and
an existing party are asserting the same interest
would have negative real-world consequences. For
example, in litigation involving governmental parties,
mandatory intervention such as that proposed by
Petitioners would create an “intractable procedural
mess.” Kaul, 942 F.3d at 801. There is no reason,
under Petitioners’ logic, why a State could not require
federal courts to accept the intervention of any
number of other governmental actors who might wish
to defend a law—ranging from any individual
legislator who voted for the law to any individual
county that supports it. “[A]llowing a single entity,
even a state, to have [multiple] independent parties
simultaneously representing it” could (and likely
would) create a scenario where Petitioners and the
Attorney General would “take inconsistent positions
on any number of issues,” including “briefing
the existing party pursues those interests in the course of the
litigation, the absent party is not required under Rule 19.”); Fed.
Ins. Co. v. Singing River Health Sys., 850 F.3d 187, 201 (5th Cir.
2017) (denying Rule 19 joinder where interests were the same).
23
schedules, to discovery issues, to the ultimate merits
of the case.” Id. at 801. In such a scenario, “[t]he
district court would . . . have no basis for divining the
true position of the State . . . on issues like the
meaning of state law, or even for purposes of doctrines
like judicial estoppel.” Id. at 801–02. In short,
transforming a State party into a hydra undermines
the federal courts’ ability to manage important cases
and the State’s own sovereign interests.11
Petitioners’
proposed
intervention,
if
permitted, would also invite problematic outcomes in
other contexts beyond suits against States. See Fed.
R. Civ. P. 1 (Federal Rules “govern the procedure in
all civil actions and proceedings in the United States
district courts”); accord Ashcroft v. Iqbal, 556 U.S.
662, 684 (2009).
In the corporate context, for
example, Petitioners’ reasoning could require courts
to allow multiple corporate employees to intervene in
suits brought against a company, with all of them
claiming to represent a single “Company” defendant
and interest. Such an outcome would upend wellestablished principles of corporate litigation,
including those established in derivative lawsuits. In
derivative lawsuits, before shareholders are
Discussing a similar issue of multiple actors claiming to be
the state for amici purposes in recent ACA litigation before this
Court, one scholar concluded: “The Court’s policing of this rule,
in a way that ensures that attorneys general alone are able to
speak for the states as such, would . . . [enhance] accountability
in the Court’s opinions. It may also matter in the states, by
clarifying for voters who does and does not have the power to set
the state’s litigation agenda in these high-profile cases.”
Anthony Johnstone, A State Is A “They,” Not an “It”: Intrastate
Conflicts in Multistate Challenges to the Affordable Care Act,
2019 B.Y.U. L. Rev. 1471, 1507 (2019).
11
24
permitted to step into the shoes of the Company and
represent that Company’s interests, they must satisfy
an extremely high burden: they must show that the
Company’s board—i.e., the designated representative
of the Company—has failed to act. See, e.g., Ross v.
Bernhard, 396 U.S. 531, 534 (1970) (noting that in
derivative lawsuits, equity courts have established
that a “precondition for the suit” is that the
shareholder demonstrate that “the corporation itself
had refused to proceed after suitable demand”). In
contrast, Petitioners’ position could give shareholders
(not to mention board members, executives, and
employees) an end-run around the demanding
standard they have long faced, requiring federal
courts to instead permit their intervention, by right,
as a Company’s additional “agents.”
The Court should decline Petitioners’ request
to rewrite the Rules and, in so doing, invite a welter
of unintended consequences. Instead, the Court
should embrace the text, history, and purpose of Rule
24, and ensure that intervention by right applies as
intended—to non-parties needing to protect their own
discrete, imperiled interests.
CONCLUSION
For the foregoing reasons, this Court should
affirm or dismiss the writ of certiorari as
improvidently granted.
Respectfully submitted,
Kathleen R. Hartnett
COOLEY LLP
3 Embarcadero Center
Adam S. Gershenson
Counsel of Record
COOLEY LLP
25
San Francisco, CA 94111
(415) 693-2000
khartnett@cooley.com
500 Boylston Street
Boston, MA 02116
(617) 937-2300
agershenson@cooley.com
Matt K. Nguyen
COOLEY LLP
1299 Pennsylvania Ave.
Washington, DC 20004
(202) 842-7800
mnguyen@cooley.com
Patrick Hayden
Katelyn Kang
COOLEY LLP
55 Hudson Yards
New York, NY 10001
(212) 479-6000
phayden@cooley.com
Counsel for Amici Curiae
Date: February 16, 2022
APPENDIX
1a
APPENDIX
List of Amici Curiae Law Professors1
ERWIN CHEMERINSKY
Dean and Jesse H. Choper Distinguished Professor
of Law
University of California Berkeley School of Law
KATHERINE FLOREY
Martin Luther King Jr. Professor of Law
University of California, Davis, School of Law
LAURA HINES
Centennial Teaching Professor
University of Kansas School of Law
LUMEN N. MULLIGAN
Earl B. Shurtz Research Professor
University of Kansas School of Law
DAVID C. VLADECK
A.B. Chettle, Jr. Chair in Civil Procedure
Georgetown University Law Center
STEPHEN I. VLADECK
Charles Alan Wright Chair in Federal Courts
University of Texas School of Law
Affiliations of amici are listed for identification purposes
only.
1
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.