Blount-Hill v. Zelman

RECOMMENDED FOR FULL-TEXT PUBLICATION
Pursuant to Sixth Circuit Rule 206
File Name: 11a0056p.06

UNITED STATES COURT OF APPEALS
FOR THE SIXTH CIRCUIT
_________________

X
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BEVERLY BLOUNT-HILL; MARCIA D.
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CONNORS; PATRICIA LYNCH, President,
Dayton Education Association, OEA/NEA; -
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No. 09-3952
STACEY RANGE; KEVIN RANGE,
Plaintiffs-Appellees, ,>
-
-
-
v.
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SUSAN TAVE ZELMAN; STATE OF OHIO, -
-
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BOARD OF EDUCATION; STATE OF OHIO

Defendants-Appellees, -
DEPARTMENT OF EDUCATION,
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-
-
-
v.
-
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HOPE ACADEMY NORTHWEST CAMPUS;
SHARONDA PERKINS; JESSICA VELASQUEZ; -
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Intervenors-Appellants. -
ANTHONY ROBINSON; JENNIFER ROBINSON,

-
N
Appeal from the United States District Court
for the Southern District of Ohio at Dayton.
No. 04-00197—Walter H. Rice, District Judge.
Decided and Filed: February 16, 2011
Before: KENNEDY, CLAY, and KETHLEDGE, Circuit Judges.

_________________

COUNSEL
ON BRIEF: John B. Schomer, Donald W. Davis, Jr., BRENNAN, MANNA &
DIAMOND, LLC, Akron, Ohio, for Appellants. William J. Steele, Sue A. Salamido,
CLOPPERT, LATANICK, SAUTER & WASHBURN, Columbus, Ohio, Todd R. Marti,
OFFICE OF THE OHIO ATTORNEY GENERAL, Columbus, Ohio, for Appellees.
CLAY, J., delivered the opinion of the court, in which KENNEDY, J., joined.
KETHLEDGE, J. (pp. 15–17), delivered a separate dissenting opinion.

1
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 2

_________________

OPINION
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CLAY, Circuit Judge. HOPE Academy Northwest Campus (“Hope Northwest”),
a community school in Cleveland, Ohio; Sharonda Perkins, a social worker and mother
of a student at HOPE Northwest; Jessica Z. Velasquez, the mother of a first grade
student at HOPE Northwest; and Anthony and Jennifer Robinson, the parents of three
students at HOPE Northwest (collectively, “proposed Intervenors”), appeal the district
court’s denial of their application to intervene as party defendants in the underlying
action as a matter of right under Rule 24(a), and as a matter of discretion under Rule
24(b), of the Federal Rules of Civil Procedure. For the reasons set forth below, we
AFFIRM the district court’s decision.

BACKGROUND

This appeal arises from a challenge to the constitutionality of the Ohio
Community Schools Act (“OCSA”), Ohio Rev. Code §§ 3314.01, et seq., and “the
funding mechanism for public schools as it relates to community schools and as
implemented by Defendant.” (Third Am. Compl. ¶ 1.) The OCSA established a charter
school system in Ohio comprised of “community schools,” which operate as public
schools that are “independent of any school district,” O.R.C. § 3314.01, and exempt
from many state laws. Id. § 3314.04. Although included in the “state’s program of
education,” id. § 3314.01, a community school is governed by a contract between its
founder and a statutorily authorized “sponsor.” Id. § 3314.02(C)(1).

Authorized sponsors may include the state or local board of education, certain
tax-exempt entities, the governing board of any educational service center, or authorities
designated by a state university board. Id. Interested parties may establish a community
school by converting an existing public school, or creating a new school in a “challenged
school district,” so long as an authorized sponsor agrees to enter into a contract. Id.
§ 3314.02(C). The statute defines a “challenged school district” as “mean[ing] any of
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 3

the following: (a) A school district that is part of the pilot project area; (b) A school
district that is either in a state of academic emergency or in a state of academic watch
under section 3302.03 of the Revised Code; [or] (c) A big eight school district,” which
the statute defines as a district meeting certain numerical thresholds. See id.
§§ 3314.02(A)(3)-(4).

Because start-up community schools must be established in a “challenged school
district,” Plaintiffs argue that the OCSA disproportionately benefits minority students
because, as Plaintiffs contend, challenged school districts are disproportionately
populated by minority students. Plaintiffs also object to the manner in which community
schools are funded. In contrast to public schools, community schools are almost wholly
state-funded and receive no funding from local sources. Plaintiffs allege that this is
unconstitutional because the state grants community schools more money per pupil than
it grants to traditional public schools.

A. Related State Court Litigation

This case is one of at least three that have challenged the constitutionality of the
OCSA. In May of 2001, various plaintiffs filed two actions in Franklin County state
court challenging the OCSA under the Ohio Constitution.1 The plaintiffs in each action
were represented by, among others, David Latanick, an attorney retained by the Ohio
Education Association (“OEA”). In June of 2004, Plaintiffs, also represented by
Latanick, among others, filed the present action, challenging the OCSA under the U.S.
Constitution. After the Ohio Supreme Court upheld the OCSA under the Ohio
Constitution,2 the state plaintiffs voluntarily dismissed the two state actions on
December 13, 2006 and March 2, 2007. On March 23, 2007, another group of plaintiffs,
also represented by Latanick, filed a third state action attacking the OCSA.

1
See Ohio Congress of Parents & Teachers v. Ohio State Bd. of Educ., No. 01 CV 4457 (filed
May 15, 2001); Pate v. Ohio State Bd. of Educ., No. 01 CV 4414 (filed May 11, 2001).
2
See State ex rel. Ohio Congress of Parents & Teachers v. Ohio State Bd. of Educ., 857 N.E.2d
1148 (Ohio 2005).
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 4

According to proposed Intervenors, shortly after filing the third state lawsuit,
Hinton v. Ohio State Board of Education, attorneys for the OEA began negotiations with
then-Ohio Attorney General Marc Dann in an effort to settle both Hinton and the present
federal litigation. Proposed Intervenors claim that in early September of 2007, the OEA
agreed to dismiss Hinton, and likely dismiss the present case, if the Attorney General
would agree to pursue litigation to close certain “underperforming and poorly managed
community schools,” which the parties defined as community schools that:

Are ranked in academic emergency or academic watch on Local Report
Cards for two of the last three reported school years and whose
Performance Index Scores on the most recent Local Report Cards are less
than that of the school districts from which they draw the largest number
of students. – OR – Have been reported by their sponsors to the Ohio
Department of Education as being in non-compliance with their academic
assessments and accountability plans or their finance plans as set forth
in their contracts. – OR – Have been found by the Auditor of State to
have unauditable records in the fiscal year most recently the subject of
an audit. – OR – Have bad findings for recovery issued against them by
the Auditor of State in two or more of the three most recently reported
fiscal years covered by regular audits. – OR – Have failed to correct
findings issued by the Auditor of State for two or more of the most recent
fiscal years covered by regular audits.

It appears from the record that proposed Intervenor HOPE Northwest was identified by
the parties to the settlement as a school that is “ripe for closing” under these guidelines.

Pursuant to the settlement agreement, the Hinton plaintiffs voluntarily dismissed
their state action on September 14, 2007. That same day, Plaintiffs moved to stay the
present federal case to permit settlement negotiations. For his part, Attorney General
Dann commenced litigation against community schools that the Attorney General
deemed to be failing and, despite public controversy, Dann’s successors, then-interim
Attorney General Nancy Rogers and then-Attorney General Richard Cordray, continued
to support the litigation against “underperforming and poorly managed community
schools.”
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 5

B. Pending Federal Litigation

The present federal litigation commenced on June 9, 2004. At that time, plaintiff
education association members and parents of school-aged children in Ohio filed a
Complaint in the district court pursuant to 42 U.S.C. § 1983 against the Ohio Department
of Education, the Ohio Board of Education, and Ohio Superintendent of Public
Instruction Susan Tave Zelman, challenging OCSA under the Equal Protection and Due
Process Clauses of the Fourteenth Amendment to the U.S. Constitution. Defendants
moved to dismiss on June 30, 2005. Plaintiffs thereafter voluntarily dismissed all
defendants except Zelman on August 11, 2005,3 and filed an Amended Complaint on
October 6, 2005. In a decision not issued until September 20, 2007, the district court
denied the motion to dismiss as to all but one claim, which alleged a denial of the right
to vote because the OSCA does not permit citizens to determine the “number or
members and the organization of a public school board of education . . . within a city,
as guaranteed by the Ohio Constitution.”

On October 1, 2004, during the pendency of the motion to dismiss, White Hat
Management, LLC (“White Hat”), a firm that “provides a full spectrum of services, from
management to financial and curriculum assistance, for many community schools,”
sought intervention as a matter of right and of discretion. (White Hat Mot. at 1, 3.) The
district court denied White Hat’s application on September 26, 2005, reasoning that as
to intervention of right, White Hat had not demonstrated that the parties would not
adequately represent White Hat’s interests in this litigation. The court further held that
permissive intervention was inappropriate because it would cause “undue and
unnecessary delay” in the form of the duplication and expansion of the litigation, thus
“requir[ing] the Plaintiffs and the Court to invest a significant amount of time and effort
in response.” White Hat appealed.

On September 5, 2006, this Court affirmed the denial of White Hat’s application
to intervene. See Blount-Hill v. State of Ohio, 195 F. App’x 482, 487. As to

3
For this reason, we use “Defendant” to refer to Zelman, and “Defendants” to refer collectively
to the original defendants in this action.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 6

intervention of right, we affirmed on the alternative grounds that White Hat’s economic
interest in the continuation of its contracts with community schools was “insufficient to
comprise a substantial legal interest for purposes of Rule 24(a) intervention.” Id. at 485.
This was because White Hat’s interest did “not concern the constitutional and statutory
violations allegation in the litigation, but rather an interest in the economic component.”
Id. at 488 (internal quotation marks and citations omitted). With regard to permissive
intervention, we held that the district court did not abuse its discretion in finding that
intervention would cause undue delay. The Supreme Court thereafter denied White
Hat’s petition for a writ of certiorari.

On September 20, 2007, upon Plaintiffs’ application, the district court stayed the
instant proceedings to permit settlement negotiations. The parties failed to settle, and
on June 30, 2008, Plaintiffs filed a Third Amended Complaint, which added two
additional plaintiffs, substituted one existing plaintiff, and revised and expanded certain
factual allegations, but did not significantly amend Plaintiffs’ legal claims. Defendant
filed a second motion to dismiss on August 29, 2008.

On November 21, 2008, during the pendency of this second motion to dismiss,
proposed Intervenors sought to intervene as a matter of right and permissively, and
alternatively sought to appear as amici curiae. On March 30, 2009, the district court
dismissed the Third Amended Complaint except as to one claim, which alleged
intentional discrimination in the allocation of school funding, in violation of the Equal
Protection Clause.

On July 30, 2009, the district court denied proposed Intervenors’ application to
intervene, reasoning that as to intervention of right, proposed Intervenors failed to show
inadequate representation by Defendant; and as to permissive intervention, undue delay
and prejudice would result to the existing parties. The district court also permitted
proposed Intervenors to appear as amici curiae. Proposed Intervenors then appealed.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 7

DISCUSSION

I. INTERVENTION OF RIGHT UNDER RULE 24(a)

A. Standard of Review

In this appeal, our review of the required elements of intervention of right under
Rule 24(a) is de novo. See United States v. Tennessee, 260 F.3d 587, 591 (6th Cir.
2001). Although our consideration of the timeliness of an application to intervene is
ordinarily tempered by deference to the district court, we have consistently applied a de
novo standard to the issue where, as here, the district court failed to make any factual
findings in this regard. See Johnson v. City of Memphis, 73 F. App’x 123, 131 (6th Cir.
2003); Stupak-Thrall v. Glickman, 226 F.3d 467, 472 n.5 (6th Cir. 2000).

Intervention of right is governed by Rule 24(a) of the Federal Rules of Civil
Procedure. Under the Rule, 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 disposition 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).

This Court has interpreted the language of the Rule to require an applicant to
show that: 1) the application was timely filed; 2) the applicant possesses a substantial
legal interest in the case; 3) the applicant’s ability to protect its interest will be impaired
without intervention; and 4) the existing parties will not adequately represent the
applicant’s interest. Grutter v. Bollinger, 188 F.3d 394, 397-98 (6th Cir. 1999). Each
of these elements is mandatory, and therefore failure to satisfy any one of the elements
will defeat intervention under the Rule. See United States v. Michigan, 424 F.3d 438,
443 (6th Cir. 2005) (citing Grubbs v. Norris, 870 F.2d 343, 345 (6th Cir. 1989)).
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 8

B. Decision of the District Court

The district court in this case denied proposed Intervenors’ application to
intervene of right on the basis that they “failed to demonstrate that the present parties
may not adequately represent their interests.” The district court reasoned that neither
case law nor the underlying facts support proposed Intervenors’ argument that the
Attorney General’s “entry into a proposed settlement agreement . . . or his participation
in unrelated lawsuits somehow diminishes his interest in defending the validity of Ohio
laws.” In light of its holding, the district found it “unnecessary” to consider the
remaining requirements of Rule 24(a), and indeed expressly stated that it did not reach
the issue of timeliness.

On appeal, proposed Intervenors ask this Court to reverse the finding below that
they failed to show inadequate representation, and to find that their intervention would
otherwise satisfy Rule 24(a). Defendant Zelman argues, as she did below, that the
application to intervene is untimely. Defendant would have us affirm on the basis of
timeliness, which was the primary basis upon which Defendant opposed the application
in the district court.

Having reviewed the record, we agree with Defendant that the untimeliness of
proposed Intervenors’ application is “glaring,” and will thus affirm on this independent
basis without reaching the question of inadequate representation. See Blount-Hill, 195
F. App’x at 487 (affirming denial of intervention of right on an alternative basis not
considered by the district court); Angel v. Kentucky, 314 F.3d 262, 264 (6th Cir. 2002)
(“[W]e are free to affirm the judgment on any basis supported by the record.”);
Abercrombie & Fitch Stores, Inc. v. Am. Eagle Outfitters, Inc., 280 F.3d 619, 629 (6th
Cir. 2002) (noting that “[b]ecause this [C]ourt’s de novo review involves only
application of legal propositions to the undisputed facts in the record, we may affirm on
any grounds supported by the record even if different from the reasons [stated below]”).

Despite the district court’s failure to reach the issue, our consideration of
timeliness in the first instance is consistent with the Supreme Court’s admonition that
the “court where the action is pending must first be satisfied as to timeliness” under Rule
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 9

24. NAACP v. New York, 413 U.S. 345, 365 (1973) (emphasis added); see also United
States v. Ritchie Special Credit Invs., Ltd., 620 F.3d 824, 832 (8th Cir. 2010) (“[T]he
timeliness of a motion to intervene is a threshold issue.”).

Additionally, we note that affirming on this alternative basis furthers the interests
of judicial economy and does not unfairly prejudice the parties, as the issue has been
raised and fully briefed. See Lindsay v. Yates, 498 F.3d 434, 440-41 (6th Cir. 2007)
(reaching an issue not decided below, where the issue was fully briefed and its resolution
would serve the interest of judicial economy). Moreover, our consideration of the
timeliness of the application will not result in an unnecessary discussion of an unsettled
area of law. Cf. Blount-Hill, 195 F. App’x at 487 (Clay, J., concurring) (preferring to
consider the issue decided below because affirming on an alterative basis would require
consideration of “a complex question of first impression”).

C. Proposed Interventors’ Application was Untimely

We begin with the legal standard under which we find the application to
intervene to be untimely. In determining the timeliness of an application for intervention
of right, we consider five factors:

1) the point to which the suit has progressed; 2) the purpose for which
intervention is sought; 3) the length of time preceding the application
during which the proposed intervenors knew or should have known of
their interest in the case; 4) the prejudice to the original parties due to the
proposed intervenors’ failure to promptly intervene after they knew or
reasonably should have known of their interest in the case; and 5) the
existence of unusual circumstances militating against or in favor of
intervention.

Jansen v. City of Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990); see also Clean Up Co.,
LLC v. ADA Assistance Corp., 229 F.3d 1151 (6th Cir. 2000) (table). No one factor is
dispositive, but rather the “determination of whether a motion to intervene is timely
should be evaluated in the context of all relevant circumstances.” Glickman, 226 F.3d
at 472-73.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 10

Applying these principles to the present case, we begin with the point to which
this action has progressed. Proposed Intervenors argue that their motion is timely
because the circumstances are similar to those that surrounded White Hat’s motion to
intervene, which the district court found to be timely. In support of their contention,
proposed Intervenors assert that their application was filed less than five months after
the filing of the Third Amended Complaint. At that time, the motion to dismiss was not
fully briefed, and discovery had not yet closed.

We reject proposed Intervenors’ analogy to White Hat’s motion to intervene that
the district court determined to be timely and find proposed Intervenors’ discussion of
the record to be unpersuasive. The timeliness of White Hat’s application was not an
issue disputed by the parties at that time. Moreover, in the three years between the
respective applications filed by White Hat and proposed Intervenors, extensive progress
has been made in this litigation, including the 1) decision granting in part Defendants’
first motion to dismiss; 2) completion of a pretrial conference and issuance of a
scheduling order; 3) additional discovery and discussions about stipulations of fact;
4) filing of a Third Amended Complaint; and 5) filing of a second motion to dismiss, to
which Plaintiffs responded. These events, coupled with the passage of time, weigh
against proposed Intervenors. See Johnson, 73 F. App’x at 132 (finding that “extensive
progress in the district court before the proposed intervenors filed their motion to
intervene” counsels against intervention); accord Ritchie Special Credit Invs., 620 F.3d
at 832-33 (denying intervention where “the progress of the litigation [was] substantial.”).

The second factor requires us to consider the purpose for which intervention is
sought. Proposed Intervenor HOPE Northwest seeks to protect its existence. The
individual proposed Intervenors likewise seek to protect their “children’s property
interest in their education, and HOPE Northwest’s ability to provide alternative
education in a ‘Big 8’ district.” They explain that “[i]f the current community school
funding method is declared unconstitutional and the injunctive relief requested by
Plaintiffs is granted, HOPE Northwest would lose its only source of funding[, meaning
that proposed Intervenors] and their children would lose their only economically viable
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 11

alternative to the failing and dangerous public schools the children would be forced to
attend.” (Pet’r Br. at 14.) Although many of Plaintiffs’ claims have been dismissed,
Plaintiffs’ success in this litigation may result in the cessation of funding to proposed
Intervenor HOPE Northwest. As a result, proposed Intervenors’ purpose for intervention
may weigh in their favor if their allegations are considered in the light most favorable
to them.

Turning to the third factor, we are troubled by the length of time preceding the
application to intervene during which proposed Intervenors knew or should have known
of their interest in this case. Proposed Intervenors contend that “the most significant
event that prompted” their intervention did not occur until Election Day on November
4, 2008. It was with the election of Richard Cordray as Attorney General that proposed
Intervenors claim that they “became certain that the plan to shut down HOPE Northwest
would be continued” based on Cordray’s public announcement that he would continue
his predecessors’ litigation targeting community schools for closure. Proposed
intervenors filed their motion to intervene 17 days after Election Day.

The problem with proposed Intervenors’ argument is that it concedes prior
knowledge of the Attorney General’s agreement to target certain schools, including
proposed Intervenor HOPE Northwest. Instead of seeking to intervene promptly after
discovering their interest in the litigation, as Rule 24(a)(2) requires, proposed
Intervenors by their own admission did not act, but instead waited for the results of the
2008 Election. Such conduct plainly makes their motion untimely. See Tennessee, 260
F.3d at 594 (citing Stotts v. Memphis Fire Dep’t, 679 F.2d 579, 584 & n.3 (6th Cir.
1982) (opining that the applicants “‘should have attempted to intervene when they first
became aware of the action, rather than adopting a ‘wait-and-see’ approach’”)).

Proposed Intervenors’ alternative argument as to their awareness of their interest
in this litigation is equally unpersuasive. Proposed Intervenors argue that their motion
was timely because they “did not know the contents of the Third Amended Complaint
before it was filed” on June 30, 2008. Even if this argument is literally correct, the Third
Amended Complaint contains legal claims materially identical to those previously pled.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 12

The amended pleading merely modified the named plaintiffs and expanded certain
factual allegations. To the extent their argument has any merit, proposed Intervenors
nonetheless waited to intervene until five months after the filing of the amended
pleading. Cf. Johnson, 73 F. App’x at 133 (finding a motion to intervene untimely,
where it was filed seven months after the applicant had notice of its interest).

Furthermore, the motion to intervene filed by White Hat suggests that proposed
Intervenors have had actual or constructive knowledge of their interests in this litigation
for several years. As Plaintiffs explain, and proposed Intervenors do not deny, White
Hat manages and operates proposed Intervenor HOPE Northwest. Although White Hat
and HOPE Northwest are separate entities, Plaintiffs assert that White Hat was founded
by David Brennan, the same individual who also founded the law firm that represents
proposed Intervenors. Combined with the controversial and public nature of the
litigation over community schools in Ohio, these facts suggest that proposed Intervenors
were on notice of their interest in this litigation as early as October of 2004, around the
time of White Hat’s motion to intervene. See Butler, Fitzgerald & Potter v. Sequa
Corp., 250 F.3d 171, 182 (2d Cir. 2001). Accordingly, we find that proposed
Intervenors’ failed to act promptly despite actual or constructive knowledge of their
interest in this litigation, and that this failure weighs heavily against the timeliness of
their application to intervene.

We now consider any prejudice to the original parties by permitting intervention,
and agree with Plaintiffs that intervention at this late stage in the litigation “would only
serve to delay the litigation and require a duplication of effort, especially since Plaintiffs
have already survived two such motions.” If permitted to intervene, proposed
Intervenors plan to seek dismissal of the remaining claim based on standing and failure
to state a claim. In view of the extensive litigation that has occurred in this case,
including two motions to dismiss, numerous amended pleadings, and the denial and
appeal of a motion to intervene, intervention at this late stage would cause prejudice in
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 13

the form of undue delay.4 Plaintiffs, Defendant, and the public have an interest in the
expeditious and efficient disposition of this action, among other reasons, because of the
cost and burden of the litigation on the parties and because it seeks to invalidate a
significant state statutory scheme.

The proposed intervention would result in the filing of a third motion to dismiss,
which would delay this action further by requiring a new briefing schedule and time for
the district court to consider the motion. The district court found these same concerns
to weigh against White Hat’s much earlier application. (See Dist. Ct. Docket No. 40 at
9.) Although proposed Intervenors claim they would agree to be bound by the existing
discovery schedule, discovery disputes and delays would nonetheless occur if, for
example, proposed Intervenors fail to agree to certain stipulations of fact, or any of the
parties seek additional discovery in aid of the contemplated third motion to dismiss.
Given the history of this case, additional delays would appear to be inevitable. In light
of the extensive litigation that has already occurred, and the previous delay caused by
an unsuccessful application to intervene that came before this Court, we see no reason
to further delay this litigation. See, e.g., Bailey v. White, 320 F. App’x 364, 366 (6th Cir.
2009).

4
The dissent argues that prior delays in this litigation justify permitting future delays. This
amounts to an argument that past dilatoriness justifies future dilatoriness. Not surprisingly, the dissent fails
to offer any legal authority to support such a baffling argument. Instead of supporting intervention, the
numerous prior delays that have plagued this litigation support our decision to bring the matter to a close.
Indeed, the timeliness requirement serves to prevent cases like this from percolating unresolved on the
federal dockets. See United States v. BASF-Inmont Corp., 52 F.3d 326 (6th Cir. 1995) (per curiam) (table)
(“[T]he purpose of the timeliness inquiry is to prevent “a tardy intervenor from derailing a lawsuit within
sight of the terminal.”) (internal quotation marks and citation omitted).
Although the dissent purports to believe that the parties have not engaged in extensive litigation,
as evidenced by a claimed lack of discovery, a review of the district court docket reveals otherwise: the
parties have been engaged in intermittent discovery since as early September 29, 2004, when the parties
filed their initial Rule 26(f) Report. The district court docket also makes reference to a Rule 30(b)(6)
deposition and document discovery. To be sure, the scope and nature of discovery may have changed with
each amended Complaint, of which there have been three, but the litigation has nonetheless moved forward
since its inception more than a half of a decade ago. A bench trial was originally scheduled for August
7, 2006, but was adjourned to allow for dispositive motions and White Hat’s motion to intervene. To the
extent the dissent faults the parties for not taking more discovery, the dissent’s concern is misplaced. Our
inquiry focuses on whether the parties have had ample time and opportunity to conduct discovery, not on
how much discovery the parties have actually conducted.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 14

D. Summary

For these reasons, and upon a de novo weighing of the relevant factors, we are
convinced that proposed Intervenors’ application was not timely filed. See Glickman,
226 F.3d at 472-73 (“The determination of whether a motion to intervene is timely
should be evaluated in the context of all relevant circumstances.”) (internal quotations
and citation omitted). Because the timely filing of an application to intervene of right
is a requirement under Rule 24(a), proposed Intervenors are not entitled to intervene of
right and the decision of the district court is affirmed on this basis.

II. PERMISSIVE INTERVENTION UNDER RULE 24(b)

This Court reviews a district court’s denial of permissive intervention for “clear
abuse of discretion.” Purnell v. City of Akron, 925 F.2d 941, 951 (6th Cir. 1991). Rule
24(b) provides that, “[o]n timely motion, the court may permit anyone to intervene who
. . . 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)(B) (emphasis added). In the instant case, because we
find that proposed Intervenors’ application was untimely—and would thus cause undue
delay and prejudice to the existing parties as discussed above—the district court did not
abuse its discretion in denying their application for permissive intervention. Although
we hold that proposed Intervenors may not participate as parties in this litigation,
proposed Intervenors are not without a voice—the district court previously permitted
proposed Intervenors to appear as amici curiae in a decision that is not before this Court.

CONCLUSION

For the reasons set forth above, we AFFIRM the denial of proposed Intervenors’
application to intervene under both Rule 24(a) and Rule 24(b) of the Federal Rules of
Civil Procedure.
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 15

________________

DISSENT
________________

KETHLEDGE, Circuit Judge, dissenting. The parties to this case have sought
and received so many extensions of time that the case remains mired in the pleadings
stage nearly seven years after the suit was commenced. That must be nearly a record.
These same parties now tell us that the proposed intervenors should be kept out of the
case, notwithstanding their vital interest in its outcome. The reason, the parties say, is
that the intervenors would slow down the parties’ expeditious litigation of the case. That
argument, from these parties, should not be taken seriously.

Up first, however, is the question whether the State can credibly represent the
intervenors’ interests in this case. The intervenors are parents whose children attend
HOPE Academy—a charter school in Cleveland—and the school itself. They seek to
prevent the closure of their school. Closing the school, however, is exactly what the
State (through its assistant attorney general) offered to do as a means of settling a related
case. The lawyers who discussed that offer in the related case are the same lawyers that
represent the State and the plaintiffs, respectively, in this case. So one can hardly blame
the parents or the school for thinking that they need to look out for their own interests
here.

The State responds that it has defended its charter-school law generally in this
case, which means that the State has defended the HOPE school along with all the
others. That is true enough. But the case is still in its early stages; and, for the reasons
already stated, the parents have good reason to think that, if the going gets heavy later
on, their school will be among the first tossed overboard. The parents and school have
easily made the “minimal” showing of inadequacy required by Rule 24(a). Trbovich v.
United Mine Workers, 404 U.S. 528, 538 n.10 (1972).

Our court turns them away nonetheless, on the ground of timeliness: it says the
parents took too long to file their motion to intervene. On that point, however, some
context is in order. In seven years of litigation, this case has not even moved past the
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 16

motion-to-dismiss stage. Timeliness, in this case, has been an interest honored only in
the breach. And yet we turn these parents away on that ground. For them that must be
a bitter irony.

The court says it is too late for intervention because the parties’ litigation of the
case has been “extensive.” I do not agree. As of the filing of the intervenors’
motion—and I think as of now too—the parties had conducted virtually no discovery in
the case, including, apparently, not a single deposition. (The parties’ most recent Rule
26(f) plan states that “[d]iscovery will commence on 11-17-08 for any issues not agreed
to by stipulation.” The intervenors filed their motion four days later, on November 21,
2008.) Nor has anyone filed a motion for summary judgment yet, because no one will
be in a position to do so for months, if not years. Trial is an even more remote prospect.
The only terminal in sight for this case is the one it started from.

The only thing that has been extensive in the litigation of this case, so far, is the
parties’ motions for extensions of time. The parties have filed (and the district court has
granted) no less than 15 of these motions, one of which pushed back the case deadlines
by a full seven months. (No wonder, then, that the district court did not cite timeliness
as the basis for its decision.) If timeliness is the concern, a much more effective way to
meet it, with less collateral damage to the parents’ interests, would be simply to tell
everyone that there will be no more extensions.

Nor do I see any other prejudice resulting from the parents’ delay in seeking
intervention. There is certainly no prejudice with regard to the parties’ discovery plan,
since the intervenors have said they will abide by it. Nor does the prospect of “discovery
disputes” down the road count as prejudice, since those disputes would be the result of
intervention simpliciter, rather than of any delay in intervention. See Jansen v. City of
Cincinnati, 904 F.2d 336, 340 (6th Cir. 1990). Nor should we deny intervention for fear
that the parents might file their own motion to dismiss, since the intervention order itself
could bar the parents from doing so. See Trbovich, 404 U.S. at 537 & n.8. To go
further, and bar these parents from the case altogether, strikes me as more punitive than
No. 09-3952 Blount-Hill, et al. v. State of Ohio, Bd. of Educ., et al. Page 17

practical. And Rule 24(a) is not supposed to be a punitive rule. See, e.g., Sierra Club
v. Espy, 18 F.3d 1202, 1205 (5th Cir. 1994).

Intervening in a lawsuit in which one is vitally interested should not be akin to
cracking a high-school clique. I think we do the parents and school an injustice, and
invert the hierarchy of interests fairly at issue, when we refuse to allow the intervenors
to defend their own interests in this case. I respectfully dissent.