Victim Rights Law Center v. Found. for Indiv. Rgts in Edu. ( 2021 )


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