United States District Court, N.D. Texas, Wichita Falls Division
MEMORANDUM OPINION AND ORDER
O' CONNOR UNITED STATES DISTRICT JUDGE.
the Court are Putative Intervenors American Civil Liberties
Union of Texas's and River City Gender Alliance's
(collectively, “Putative Intervenors”) Renewed
Motion to Intervene, Brief in Support, and Appendix in
Support (ECF Nos. 129-31), filed February 1, 2019;
Plaintiffs' Response (ECF No. 140), filed February 25,
2019; Defendants' Response (ECF No. 141), filed February
25, 2019; and Putative Intervenors' Reply (ECF No. 144),
filed March 11, 2019. Also before the Court are Plaintiff
States' Renewed Motion for Summary Judgment, Brief in
Support, and Appendix in Support (ECF Nos. 132-34), filed
February 4, 2019; Private Plaintiffs' Renewed Motion for
Partial Summary Judgment, Brief in Support, and Appendix in
Support (ECF Nos. 135-37), filed February 4, 2019;
Defendants' Response (ECF No. 154), filed April 5, 2019;
Putative Intervenors' Response (ECF No. 155), filed April
5, 2019; Plaintiff States' Reply (ECF No. 157), filed May
3, 2019; and Private Plaintiffs' Reply (ECF No. 158),
filed May 3, 2019.
December 31, 2016 Order granting Plaintiffs' motions for
a preliminary injunction and applying the injunction
throughout the country, the Court set forth the extensive
statutory, regulatory, and procedural background to this
case. See Order 1-12, ECF No. 62. Since that time,
there have been several important procedural developments. On
January 24, 2017, the Court deferred ruling on Putative
Intervenors' original motion to intervene because it was
not yet clear whether Defendants would adequately represent
Putative Intervenors' interest. Order 7, ECF No. 69. On
March 15, 2017, Plaintiffs filed a motion for summary
judgment. Pls.' Mot. Summ. J., ECF No. 82. On March 27,
2017, Putative Intervenors filed a motion to stay proceedings
pending appeal of the Court's denial of their motion to
intervene. Putative Intervenors' Mot. Stay, ECF No. 85.
On May 2, 2017, Defendants filed a motion to remand and stay
litigation pending the United States Department of Health and
Human Services' (“HHS”) reconsideration of
the regulation at issue, entitled Nondiscrimination in Health
Programs & Activities (“the Rule”), 81 Fed.
Reg. 31376 (May 18, 2016), codified at 45 C.F.R. § 92.
Defs.' Mot. Remand & Stay, ECF No. 92. On June 30,
2017, the Fifth Circuit declined to rule on Putative
Intervenors' motion to intervene as of right because this
Court had not yet ruled on the motion for permissive
intervention. Fifth Circuit's J., ECF No. 104. On July
10, 2017, after a hearing, the Court stayed the case in order
to allow HHS to review the Rule. Order, ECF No. 105. The
Court deferred ruling on Putative Intervenors' pending
motion to intervene based on Defendants' contention that
a change to the Rule could moot the case and on Putative
Intervenors' own concerns cited in their motion to stay.
Id. On December 17, 2018, Plaintiffs and Defendants
filed a joint motion to lift the stay and set a briefing
schedule. Joint Mot. Lift Stay, ECF No. 125. The
Court granted the parties' requests, lifting the stay and
setting a briefing schedule for Putative Intervenors'
renewed motion to intervene, as well as the parties'
renewed motions for summary judgment. Order, ECF No. 126.
Those motions are now fully briefed and ripe for ruling. The
Court granted HHS two years to complete its review and amend
the Rule at issue. Despite HHS's better efforts, the rule
remains on the books. 45 C.F.R. § 92 (2016).
Accordingly, the Court finds that principles of equity and
judicial economy favor ruling on the pending motions,
allowing the other parties in this case to conclude two years
of litigation on these issues.
Rule of Civil Procedure 24(a) permits a party to seek
intervention as of right, while Rule 24(b) allows a party to
seek permissive intervention. Fed.R.Civ.P. 24.
“Although the movant bears the burden of establishing
its right to intervene, Rule 24 is to be liberally
construed.” Wal-Mart Stores, Inc. v. Tex. Alcoholic
Beverage Comm'n, 834 F.3d 562, 565 (5th Cir. 2016)
(citation omitted). “Federal courts should allow
intervention when no one would be hurt and the greater
justice could be attained.” Id. (quoting
Sierra Club v. Espy, 18 F.3d 1202, 1205 (5th Cir.
1994)) (internal quotation marks omitted).
Intervention as of Right
24(a)(2) of the Federal Rules of Civil Procedure provides
[o]n 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
proposed intervenor is entitled to intervene if all the
following elements are satisfied:
(1) the application for intervention must be timely;
(2) the applicant must have an interest relating to the
property or transaction which 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 his
ability to protect that interest; and (4) the applicant's
interest must be inadequately represented by the existing
parties to the suit.
Texas v. United States, 805 F.3d 653, 657 (5th Cir.
2015) (quoting New Orleans Pub. Serv., Inc. v. United Gas
Pipe Line Co. (NOPSI), 732 F.2d 452, 463 (5th Cir. 1984)
(en banc)). “Failure to satisfy one requirement
precludes intervention of right.” Haspel &
Davis Milling & Planting Co. Ltd. v. Bd. of Levee
Comm'rs of the Orleans Levee Dist., 493 F.3d 570,
578 (5th Cir. 2007); see also Espy, 18 F.3d at 1205.
Rule of Civil Procedure 24(b)(1) provides that “[o]n
timely motion, the court may permit anyone to intervene who:
(A) is given a conditional right to intervene by a federal
statute; or (B) has a claim or defense that shares with the
main action a common question of law or fact.”
Fed.R.Civ.P. 24(b)(1). “In exercising its discretion,
the court must consider whether the intervention will unduly
delay or prejudice the adjudication of the original
parties' rights.” Fed.R.Civ.P. 24(b)(3). Permissive
intervention under Rule 24(b) “is wholly discretionary
with the [district] court . . . even though there is a common
question of law or fact, or the requirements of Rule 24(b)
are otherwise satisfied.” Kneeland v. Nat'l
Collegiate Athletic Ass'n, 806 F.2d 1285, 1289 (5th
Cir. 1987). Intervention is appropriate when: “(1)
timely application is made by the intervenor, (2) the
intervenor's claim or defense and the main action have a
question of law or fact in common, and (3) intervention will
not unduly delay or prejudice the adjudication of the rights
of the original parties.” Frazier v. Wireline
Sols., LLC, No. C-10-3, 2010 WL 2352058, at *4 (S.D.
Tex. June 10, 2010) (citation omitted); In re Enron Corp.
Sec., Derivative & “ERISA” Litig., 229
F.R.D. 126, 131 (S.D. Tex. 2005).
judgment is proper when the pleadings and evidence show
“there is no genuine dispute as to any material fact
and the movant is entitled to judgment as a matter of
law.” Fed.R.Civ.P. 56(a). “[T]he substantive law
will identify which facts are material.” Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A
genuine issue of material fact exists “if the evidence
is such that a reasonable jury could return a verdict for the
nonmoving party.” Id. The movant makes a
showing that there is no genuine issue of material fact by
informing the court of the basis of its motion and by
identifying the portions of the record that reveal there are
no genuine material-fact issues. See Fed. R. Civ. P.
56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 323
reviewing the evidence on a motion for summary judgment, the
court must resolve all reasonable doubts and inferences in
the light most favorable to the non-movant. See Walker v.
Sears, Roebuck & Co., 853 F.2d 355, 358 (5th Cir.
1988). The court cannot make a credibility determination in
light of conflicting evidence or competing inferences.
Anderson, 477 U.S. at 255. And if there appears to
be some support for the disputed allegations, such that
“reasonable minds could differ as to the import of the
evidence, ” the court must deny the motion for summary
judgment. Id. at 250.
reviewing an agency action, “the reviewing court shall
decide all relevant questions of law, interpret
constitutional and statutory provisions, and determine the
meaning or applicability of the terms of an agency
action.” 5 U.S.C. § 706. Further, the court
“shall . . . hold unlawful and set aside agency action,
findings, and conclusions found to be-arbitrary, capricious,
an abuse of discretion, or otherwise not in accordance with
law.” Id. at § 706(2)(A). Because
Congress “provided vacatur as a standard remedy for APA
violations, ” courts typically
administrative rules as a matter of course, leaving their
predecessors in place until the agencies can take further
action.” Pennsylvania v. President United
States, 930 F.3d 543, 575 (3d Cir. 2019).