FILED
2018 Dec-13 AM 11:34
U.S. DISTRICT COURT
N.D. OF ALABAMA

UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF ALABAMA
SOUTHERN DIVISION
STATE OF ALABAMA, et al.,
Plaintiffs,
v.
UNITED STATES DEPARTMENT OF
COMMERCE, et al.,
Defendants.

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Case No.: 2:18-CV-772-RDP

MEMORANDUM OPINION
This case is before the court on two Motions to Intervene. (Docs. # 6, 9). The first was
filed by Diana Martinez, Raisa Sequeira, Saulo Corona, Irving Medina, Joey Cardenas, Florinda
P. Chavez, and Chicanos Por La Causa (“CPLC”) (collectively, “the Martinez Movants”). (Doc.
# 6). The second was filed by Santa Clara County, California; King County, Washington; and the
City of San José, California (collectively, “the Local Government Movants”). (Doc. # 9). The
Proposed Defendant-Intervenors have filed their Motions (Docs. # 6, 9) pursuant to Federal Rule
of Civil Procedure 24(a) and 24(b). The Motions are fully briefed (Docs. # 6, 9, 16-18), and are
ripe for review. For the reasons explained below, the Motions are due to be granted under rule
24(b)(1)(B), as the court concludes the Proposed Defendant-Intervenors are entitled to
permissive intervention.
I.

Procedural Background
Plaintiffs, the State of Alabama and Representative Morris J. “Mo” Brooks, Jr., filed suit

on May 21, 2018, challenging the Final 2020 Census Residence Criteria and Residence
Situations Rule (“Residence Rule”), which was finalized in February 2018. (Doc. # 1 at ¶ 1). The

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 Residence Rule1 “provides that foreign nationals living in the United States will be counted in
the census and allocated to the state where their „usual residence‟ is located—regardless of
whether they are legally present in the United States.” (Id.). Plaintiffs raise three constitutional
and two statutory challenges to the Residence Rule, and contend that the inclusion of
undocumented persons in the 2020 Census will negatively affect Alabama‟s access to federal
funding as well as the State‟s political representation in the House of Representatives and the
Electoral College. (See generally Doc. # 1). Plaintiffs request (1) that the Residence Rule be
declared unlawful and (2) that the congressional apportionment following the 2020 Census
exclude undocumented persons from the population figures. (Id. at ¶ 158).
The Proposed Defendant-Intervenors filed their respective Motions on July 12, 2018
(Doc. # 6) and July 17, 2018 (Doc. # 9). The Martinez Movants are comprised of six voters from
California, Florida, Arizona, and Texas -- states which they indicate have large populations of
Latinos, non-U.S. citizens, and undocumented immigrants -- and CPLC, an organization that
“works to increase Latino political empowerment in Arizona.” (Doc. # 6-2 at 6). Similarly, the
Local Government Movants include two counties and a municipality “that are home to
disproportionately large populations of undocumented persons.” (Doc. # 9 at 6). Both groups of
movants request either leave to intervene as Defendants as of right pursuant to Federal Rule of
Civil Procedure 24(a)(2) or, in the alternative, permissive intervention pursuant to Federal Rule
of Civil Procedure 24(b)(1)(B). (Docs. # 6-2 at 6; 9 at 5).
The only opposition to the Motions was filed by the State of Alabama on July 20, 2018.
(Doc. # 16). Alabama argues that the Motions should be denied without prejudice and suggests
that the court should instead grant amicus status to one or more of the movants. (Id. at 1-2).

1

Final 2020 Census Residence Criteria and Residence Situations, 83 Fed. Reg. 5525 (February 8, 2018) (to be
codified at 15 C.F.R. Ch. 1) (“Residence Rule”).

2

 Defendants United States Department of Commerce, Wilbur L. Ross, Bureau of the Census, and
Ron S. Jarmin responded on July 20, 2018 by declaring that they “take no position one way or
another regarding the motions to intervene.” (Doc. # 15 at 1). The court notes that Defendants
have since filed a Motion to Dismiss for Lack of Jurisdiction, arguing that Plaintiffs lack Article
III standing due to the speculative nature of the injury they assert. (Doc. # 45).
II.

Analysis
For the reasons described below, the Motions to Intervene are due to be granted, and the

Proposed Defendant-Intervenors are entitled to permissive intervention. And, because the court
finds permissive intervention is appropriate in this case, the court need not address whether the
Proposed Defendant-Intervenors may intervene as a matter of right under Rule 24(a).
A. The Proposed
Intervention

Defendant-Intervenors

Are

Entitled

to

Permissive

Federal Rule of Civil Procedure 24(b) permits a party to intervene if, by timely motion,
the party asserts “a claim or defense that shares with the main action a common question of law
or fact.” The principal consideration is whether intervention will “unduly prejudice or delay the
adjudication of the rights of the original parties.” Georgia v. U.S. Army Corps of Eng’rs, 302
F.3d 1242, 1250 (11th Cir. 2002); see also Chiles v. Thornburgh, 865 F.2d 1197, 1213 (11th Cir.
1989). Ultimately, the decision to allow a party to permissively intervene is “wholly
discretionary with the court.” Worlds v. Dep’t of Health and Rehabilitative Servs., 929 F.2d 591,
595 (11th Cir. 1991). Because the Proposed Defendant-Intervenors satisfy each of these
elements, they are entitled to permissive intervention.
To be sure, the briefing on this issue is not targeted at an assertion that the Proposed
Defendant-Intervenors lack a defense that shares with the main action a common question of law
or fact. Rather, the opposition to intervention addresses whether the Motions are timely. In
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 determining whether a motion to intervene is timely, a court should consider the following
factors: “(1) the length of time during which the proposed intervenor knew or reasonably should
have known of the interest in the case before moving to intervene; (2) the extent of prejudice to
the existing parties as a result of the proposed intervenor‟s failure to move for intervention as
soon as it knew or reasonably should have known of its interest; (3) the extent of prejudice to the
proposed intervenor if the motion is denied; and (4) the existence of unusual circumstances
militating either for or against a determination that their motion was timely.” Georgia, 302 F.3d
at 1259 (citing Chiles, 865 F.2d at 1213). The same analysis applies whether the court is
considering a motion for intervention as a matter of right or permissive intervention. United
States v. Jefferson County, 720 F.2d 1511, 1516 (11th Cir. 1983).
The Proposed Defendant-Intervenors have filed their Motions at the earliest stages of this
litigation. Plaintiffs filed the Complaint on May 21, 2018 (Doc. # 1), and the Motions to
Intervene were filed on July 12, 2018 (Doc. # 6) and July 17, 2018 (Doc. # 9), respectively—less
than two months after the Complaint was filed. No discovery has been conducted, no scheduling
order has been entered, and no motions have been heard by the court. Permitting intervention at
this stage will not delay the adjudication of the litigants‟ rights or the judicial process as “the
court [has] yet to take significant action.” Georgia, 302 F.3d at 1259-60 (finding intervention
timely and non-prejudicial because “the court had yet to take significant action,” even though the
motion was filed 6 months after intervenor was aware of its interest in the litigation and
discovery had already commenced).
The State of Alabama attempts to argue that the Motions to Intervene are untimely, not
because they were filed too late, but because they were filed too early. (Doc. # 16 at 3).
However, that argument commingles the timeliness and inadequate representation elements. In

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 arguing that the Motions are “premature,” the State points out that Defendants have not filed an
answer and there is no way to know whether Defendants will adequately represent the Proposed
Defendant-Intervenors‟ interests. (Id.). However, the Proposed Defendant-Intervenors have
provided the court with multiple examples of caselaw from courts in this Circuit rejecting similar
arguments. (Doc. # 17 at 6-8). See Nat. Res. Def. Council v. Nat’l Park Serv., 2016 WL 5415127,
at *2 (M.D. Fla. Sept. 28, 2016) (finding motion to intervene timely when it was filed thirty days
after the complaint was filed and before defendants filed a responsive pleading); Defs. Of
Wildlife v. Bureau of Ocean Energy Mgmt., 2010 U.S. Dist. LEXIS 130581, at *7-8 (S.D. Ala.
Dec. 9, 2010) (finding motion to intervene timely where it was filed before defendants had filed
a responsive pleading); Holmes v. Educational Credit Management Corp., 2012 WL 1605940, at
*2 (N.D. Fla. April 4, 2012) (finding motion to intervene timely because there was no prejudice
to existing parties where motion was filed prior to the answer deadline). Further, and in any
event, Defendants filed a Motion to Dismiss for Lack of Jurisdiction on November 13, 2018,
arguing that Plaintiffs lack standing to pursue their claims. (Doc. # 45). Because intervention
would not prejudice the existing parties at this early phase of litigation, the Motions to Intervene
are timely.
As to the third factor, Proposed Defendant-Intervenors have shown they will likely suffer
prejudice if their Motions to Intervene are denied. In considering this factor, “the thrust of the
inquiry must be the extent to which a final judgment in the case may bind the movant even
though he is not adequately represented by an existing party.” United States v. Jefferson County,
720 F.2d at 1517. This factor is given particular weight where the proposed intervenor “has a
sufficiently greater stake than the party that the party‟s representation may be inadequate to
protect the movant‟s interest.” Id. Here, the papers before the court demonstrate that the

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 Proposed Defendant-Intervenors have a personal stake in the outcome of this litigation, such that
they would be prejudiced if intervention was not permitted. If the Residence Rule was vacated,
the Martinez Movants have asserted that their “voting strength and representation in the House of
Representatives and the [E]lectoral [C]ollege” could be negatively affected. (Doc. # 6-2 at 16).
In the case of the Local Government Movants, their potential prejudice is twofold: (1) their
“ability to maintain accurate internal political boundaries” may be harmed and (2) the amount of
Census-Based Federal Funding granted to each municipality may decrease. (Doc. # 9 at 6). As a
result, the respective interests of the Proposed Defendant-Intervenors may go unrepresented if
they are not permitted to intervene. Thus, the court finds the Motions to be timely.
The Proposed Defendant-Intervenors also satisfy the commonality standard required by
Rule 24(b), because they intend to defend the Residence Rule based on the same law and facts
that the existing parties to the litigation have already raised. (See Docs. # 6-3; 9-1). Specifically,
they argue that the Residence Rule is lawful under the both the Constitution and the APA. (Id.).
While Plaintiffs contend that an “actual enumeration” of the “whole number of persons in each
State” must exclude undocumented persons (see generally Doc. # 1), the Movants argue that the
“persons” to be counted for purposes of apportionment necessarily includes undocumented
persons. (Docs. # 6-2 at 24; 9 at 22). Indeed, the defenses the Proposed Defendant-Intervenors
intend to submit share identical questions of fact and law with the main action. As such, they are
entitled to a secondary voice in the action in order to protect their specific interests. 2

2

The decision to permit intervention in this case is particularly significant in light of Defendants‟ rather halfhearted
Motion to Dismiss for Lack of Jurisdiction. (Doc. # 45). Indeed, the court is concerned that Defendants have
overlooked a key argument as to why Plaintiffs potentially lack Article III standing—i.e., whether Plaintiffs‟
claimed representational injury is likely to be redressed by a favorable decision of this court. See Franklin v.
Massachusetts, 505 U.S. 788 (1992). Allowing intervention will increase the prospect that the court will be more
fully informed of the best arguments that support Defendants‟ position.

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 III.

Conclusion
For the reasons explained above, the Motions to Intervene are due to be granted.

Consequently, the Proposed Defendant-Intervenors may permissively intervene pursuant to
Federal Rule of Civil Procedure 24(b). A separate Order consistent with this Memorandum
Opinion will be entered.
DONE and ORDERED this December 13, 2018.

_________________________________
R. DAVID PROCTOR
UNITED STATES DISTRICT JUDGE

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