194 F.3d 1045 (9th Cir. 1999), 98-35732, Smith et al v. Marsh et al

Docket Nº:98-35732
Citation:194 F.3d 1045
Party Name:KATURIA E. SMITH; ANGELA ROCK; MICHAEL PYLE, for themselves and all others similarly situated, Plaintiffs-Appellees, And UNIVERSITY OF WASHINGTON, Law School; WALLACE D. LOH; SANDRA MADRID; RICHARD KUMMERT; MICHAEL TOWNSEND; ROLAND HJORTH, Defendants-Appellees, And ROBERT ARONSON; JOHN JUNKER; JACQUELINE MCMURTRIE; ERIC SCHNAPPER; JANET STEARNS, De
Case Date:November 01, 1999
Court:United States Courts of Appeals, Court of Appeals for the Ninth Circuit
 
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194 F.3d 1045 (9th Cir. 1999)

KATURIA E. SMITH; ANGELA ROCK; MICHAEL PYLE, for themselves and all others similarly situated, Plaintiffs-Appellees,

And

UNIVERSITY OF WASHINGTON, Law School; WALLACE D. LOH; SANDRA MADRID; RICHARD KUMMERT; MICHAEL TOWNSEND; ROLAND HJORTH, Defendants-Appellees,

And

ROBERT ARONSON; JOHN JUNKER; JACQUELINE MCMURTRIE; ERIC SCHNAPPER; JANET STEARNS, Defendants,

v.

TYSON MARSH; ROBIN WILT; ADRIANA MAESTAS; BRIDGET LOKELANI SLAVENS; BUFFY JO CHRISTINA WICKS; TROY A. HUTSON; SONIA M. RODRIGUEZ; ELAINE B. GIN; ANDREW LANGHAM; ELIZABETH M. ADAMITIS; PETER MICHAEL MACDONALD; TRACEY J. MARCH; ALICE M. OSTDIEK, Amici Curiae-Appellants.

No. 98-35732

United States Court of Appeals, Ninth Circuit

November 1, 1999

Argued and Submitted August 10, 1999--Seattle, Washington

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Mark D. Rosenbaum (argued), Daniel P. Tokaji, ACLU Foundation of Southern California, Los Angeles, California; Steven Shapiro, ACLU Foundation, New York, New York; Lucy Lee Helm, W. Ward Morrison, Jr., Graham & James; Riddell

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Williams, Seattle, Washington, for the proposed intervenors-appellants.

Michael F. Rosman (argued), Hans F. Bader, Center for Individual Rights, Washington, D.C., for the plaintiffs-appellees.

Appeal from the United States District Court for the Western District of Washington; Thomas S. Zilly, District Judge, Presiding. D.C. No. CV-97-00335-TSZ

Before: William C. Canby, Jr., Melvin Brunetti, and Diarmuid F. O'Scannlain, Circuit Judges.

O'SCANNLAIN, Circuit Judge:

We must decide whether a motion to intervene as of right in a pending federal affirmative action lawsuit was properly denied as untimely.

I

The case underlying the motion to intervene challenges the use of affirmative action in admissions at the University of Washington Law School. Katuria Smith, Angela Rock, and Michael Pyle ("Applicants") are unsuccessful white applicants who sued the Law School, former dean Wallace D. Loh, and certain other current and former Law School officials (collectively, "the Law School"), seeking to challenge its admission policies. Tyson Marsh and twelve others ("Students") are prospective and current law students at the University of Washington, including minority students, who claim that their educational opportunities would be diminished if affirmative action were abolished. Students sought to intervene as of right under Federal Rule of Civil Procedure 24(a)(2) as defendants in the underlying affirmative action case. They claim that minority student admissions and enrollment would decline sharply if affirmative action were abolished, injuring them in two ways: (1) by decreasing educational diversity, and (2) by reducing minority applicants' chances of gaining admission to the Law School. The district court denied the motion to intervene, holding that it was untimely because it was made fifteen months after commencement of the Applicants' lawsuit and without adequate explanation for the delay. In addition, the court denied intervention on the ground that Students' interests were adequately represented by the Law School. Denial of the motion to intervene is the only issue raised by the present appeal.

To understand the legal issues presented by this appeal, a thorough understanding of the prior proceedings is necessary. The underlying litigation commenced on March 5, 1997, when Applicants filed a complaint in federal district court alleging that the Law School's admissions system discriminated on the basis of race in violation of 42 U.S.C.SS 1981, 1983, and 2000d. The Law School answered on May 30, 1997. Applicants filed a consolidated amended complaint on July 10, 1997, which the Law School answered on August 9, 1997. Later that month, Applicants filed a demand for a jury trial, followed by a motion for class certification; the Law School opposed both motions.

In December 1997, various individual Law School officials filed a motion for partial summary judgment on the basis of qualified immunity. In January 1998, the Law School moved for partial summary judgment on the Title VI claims, 42 U.S.C. S 2000d. Applicants filed responses opposing both motions for summary judgment, to which the Law School replied. On March 13, 1998, the district court heard oral argument on the pending motions. In April 1998, the Law School moved to strike Applicants' jury demand, to which Applicants responded and the Law School replied later that month. On April 22, 1998, the district court denied without prejudice the Law School's motion for partial summary judgment on the Title VI claims; granted in part, and denied in part without prejudice, the individual Law School officials' summary judgment motion; granted Applicants' motion to bifurcate the trial; and denied in part, and granted in part,

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Applicants' motion for certification of a plaintiff class.

In addition to the substantive motions outlined above, the district court dealt with various procedural and discoveryrelated matters. On June 11, 1997, three months after filing of the original complaint, the court issued a pretrial order setting a timetable for the litigation. On March 13, 1998, when it heard the summary judgment motions, the district court also held a status conference. Following the status conference, on April 7, 1998, the court issued an amended pretrial order under which expert disclosures were due on August 21, 1998; all discovery was to close by October 16, 1998; and trial was to begin January 19, 1999. This order was in effect when Students sought to intervene.1

On June 4, 1998, Students moved to intervene as defendants, and the Law School supported their motion. Relying upon (1) the stage of the proceeding at which intervention was sought, (2) the prejudice to other parties, and (3) the reason for and length of delay before intervening, see County of Orange v. Air California, 799 F.2d 535, 537 (9th Cir. 1986), the district court concluded that the motion was untimely because (1) the court had already decided several substantive motions, (2) discovery was well underway, and (3) Students failed to offer an adequate explanation for the lengthy delay of over a year before seeking intervention. The district court concluded further that Students had failed to demonstrate that their interests would be inadequately represented by the existing defendants in light of the fact that they and the Law School had the same ultimate objective: preservation of the Law School's current admissions policy in order to ensure a diverse student body. Accordingly, the district court denied the motion to intervene in an order of July 24, 1998. Students timely filed a notice of appeal, and the present appeal ensued.

The Applicants' lawsuit against the Law School has progressed significantly since the denial of the motion to intervene. The district court set further discovery deadlines for late 1998 and early 1999, and the court also dealt with various additional discovery motions.

On November 3, 1998, during the pendency of the underlying case, the voters of the State of Washington passed Initiative Measure 200 ("I-200"), which provides that "[t]he State shall not discriminate against, or grant preferential treatment to, any individual or group on the basis of race, sex, color, ethnicity, or national origin in the operation of public employment, public education, or public contracting." Shortly thereafter, on November 19, 1998, the Law School moved to dismiss Applicants' claims for injunctive and declaratory relief as moot. Subsequently, the Law School moved for summary judgment, and Applicants moved for partial summary judgment on the issue of liability. On February 10, 1999, the district court granted the Law School's motion to dismiss the injunctive and declaratory claims as moot, thereby dismissing all claims for equitable relief (except for one Applicant's individual claim for an injunction ordering him to be admitted to the Law School)2. At the same time, the court

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also decertified the Applicants' plaintiff class. On February 12, 1999, the court issued an order denying both motions for summary judgment, certified its order for appeal, and stayed the trial pending further order.3

II

The denial of a motion to intervene as of right constitutes, of course, an appealable "final decision" under 28 U.S.C. S 1291. See League of United Latin American Citizens v. Wilson, 131 F.3d 1297, 1302 (9th Cir. 1997) ("LULAC"). Although a district court's denial of a motion to intervene as of right pursuant to Rule 24(a)(2) is reviewed de novo, see United States v. Washington, 86 F.3d 1499, 1503 (9th Cir. 1996), a district court's determination of the timeliness of a motion to intervene is reviewed for abuse of discretion. See LULAC, 131 F.3d at 1302; Washington, 86 F.3d at 1503. "An abuse of discretion occurs if the district court bases its decision on an erroneous legal standard or on clearly erroneous findings of fact." Coalition for Economic Equity v. Wilson, 122 F.3d 692, 701 (9th Cir. 1997) (internal quotation marks omitted).

III

Intervenors sought intervention as a matter of right under Federal Rule of Civil Procedure 24(a)(2). Rule 24 provides:

(a) Intervention of Right. Upon timely application anyone shall be permitted to intervene in an action: . . . (2) when the applicant claims an interest relating to the property or transaction which is the subject of the action and the applicant is so situated that the disposition of the action may as a practical matter impair or impede the applicant's ability to protect that interest, unless the applicant's interest is adequately represented by existing parties.

Fed. R. Civ. P. 24(a)(2). "[T]he requirements of Rule 24(a)(2) may be broken down into four elements, each...

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