A court may treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction, even though intervention cannot ordinarily revive a suit.
A pro se taxpayer and grandparent sued the State and a county school board seeking a racially integrated unitary school system. The district court dismissed for lack of standing and denied leave to amend. On appeal, the parents of pupils, who clearly had standing, stated they would seek intervention on remand. The question is whether intervention may be allowed despite the case's procedural posture and delay. The court holds that intervention may be treated as a separate action, particularly where the intervenor has an independent basis for jurisdiction. Timeliness is judged by all circumstances, and the court vacates the judgment and remands with the parents substituted as plaintiffs.
At page 876 Continuation of suit by intervenor after original jurisdiction party leaves10 citing cases“treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction,”
- Benavidez v. Eu, 34 F.3d 825 (9th Cir. 1994).published By allowing the suit to continue with respect to the intervening party, the court can avoid the senseless ‘delay and expense of a new suit, which at long last will merely bring the parties to the point where they now are.’ (citation omitte…
- Simmons v. Interstate Com. Comm'n, 716 F.2d 40 (D.C. Cir. 1983).published All but one of them involve either (1) continuation of a suit by an intervenor after the party who originally provided valid subject matter jurisdiction has left the case, see United States Steel Corp. v. EPA, 614 F.2d 843, 845 (3d Cir.197…
- Brooks v. Ward, 97 F.R.D. 529 (W.D.N.C. 1983).publishedAtkins v. State Board of Education of North Carolina, 418 F.2d 874, 876 (4th Cir.1969); Miller & Miller Auction, Inc. v. G.W.
- Goto v. Dist. of Columbia Bd. of Zoning Adjustment, 423 A.2d 917 (D.C. 1980).published See United States Steel Corp. v. EPA, 614 F.2d 843 , 846 & n.4 (3d Cir. 1979) (intervenor-plaintiff permitted to proceed after dismissal of original plaintiff when defendant on notice of inter-venor’s claims); Atkins, supra at 876 (case re…
- Brown v. Bd. of Educ., 84 F.R.D. 383 (D. Kan. 1979).published In Johnson v. San Francisco Unified School District, supra, 500 F.2d at 353, the . court pointed out: other courts have recognized that, for purposes of Rule 24(a)(2), all students and parents, whatever their race, have an interest in a so…
- David Johnson v. San Francisco Unified Sch. Dist., (Two Cases). David Johnson v. San Francisco Unified Sch. Dist., Robert G. Nelson, Intervenors-Appellants (Two Cases). David Johnson v. San Francisco Unified Sch. Dist., & Nat'l Ass'n for the Advancement of Colored People, Guey Heung Lee, in Intervention-Appellants. David Johnson v. San Francisco Unified Sch. Dist., 500 F.2d 349 (9th Cir. 1974).publishedIf barriers are needed to limit extension of the right to intervene, the criteria of practical harm to the applicant and the adequacy of representation by others are better suited to the task.' 5 See United States v. Board of School Commis…
- Johnson v. San Francisco Unified Sch. Dist., 500 F.2d 349 (9th Cir. 1974).publishedSee United States v. Board of School Commissioners of Indianapolis, Indiana, 466 F.2d 573, 575 (7th Cir. 1972); Hatton v. County Board of Education of Maury County, Tennessee, 422 F.2d 457, 460-461 (6th Cir. 1970); Atkins v. State Board of…
- CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469 (4th Cir. 2015).published(Ordinarily intervention cannot be used to revive a law suit, but a court may treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction.)
- Nucor Corp. v. United States, 516 F. Supp. 2d 1348 (Ct. Int'l Trade 2007).publishedSee id. (citing Atkins v. State Bd. of Educ. of N.C., 418 F.2d 874, 876 (4th Cir.1969), Fuller v. Volk, 351 F.2d 323, 328 (3d Cir.1965), Magdoff v. Saphin Television & Appliance, Inc., 228 F.2d 214, 215 (5th Cir.1955), and Hunt Tool Co. v.…
- Forde v. Hornblower New York, LLC, 243 F. Supp. 3d 461 (S.D.N.Y. 2017).published([A] court may treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction.” (emphasis added))
At page 875 Treat intervention as a separate action2 citing cases“treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction”
- Nat'l Ass'n of State Util. Consum. Advocates v. Fed. Commc'ns Comm'n, 457 F.3d 1238 (11th Cir. 2006).published“treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction”
- Nasuca v. FCC, 468 F.3d 1272 (11th Cir. 2006).published
Other citing cases
- Montcalm Publ'g v. Commonwealth of VA, 199 F.3d 168 (4th Cir. 1999).published
- Hill v. W. Elec. Co., 672 F.2d 381 (4th Cir. 1982).published
- Ollie T. Hill v. W. Elec. Co., 672 F.2d 381 (4th Cir. 1982).published
- Glassman Constr. Co. v. United States ex rel. Clark-Fontana Paint Co., 421 F.2d 212 (4th Cir. 1970).published
- Glassman Constr. Co. v. United States, 421 F.2d 212 (4th Cir. 1970).published
- Tom Bates Edward H. Lyman Ardis Graham Richard D. Lewis Lawrence J. Buchalter Jonathan Browning Rachel Sherman Martha A. Escutia Sylvia Hernandez Ana Rosa Pena Claudia Navar Barbara J. Friedman Susan Zarakov Harriet Sculley v. Bill Jones, Sec'y of the State of California Bradley J. Clark Alameda Cnty. Registrar of Voters Conny McCormack Los Angeles Cnty. Registrar of Voters, & Peter F. Schabarum Lewis K. Uhler Lee A. Phelps Nat'l Tax Limitation Comm. All. of California Taxpayers & Involved Voters Intervenors-Appellees. Bill Jones, Sec'y of the State of California, & Peter F. Schabarum Lewis K. Uhler, Intervenors-Appellants v. Tom Bates Edward H. Lyman Richard D. Lewis Lawrence J. Buchalter Jonathan Browning Rachel Sherman, & Nat'l Tax Limitation Comm. All. of California Taxpayers & Involved Voters, Intervenors v. Bill Jones, Sec'y of the State of California, 127 F.3d 870 (9th Cir. 1997).published
- Bates v. Jones, 127 F.3d 870 (9th Cir. 1997).published
v.
STATE BOARD OF EDUCATION OF NORTH CAROLINA (W. Dallas Herring, Chairman, Charles F. Carroll, Secretary) Charles F. Carroll, State Superintendent of Public Instruction and Administrative Head of the North Carolina Free Public School System, and his Successor in Office Winston-Salem/ Forsyth County Board of Education (William M. Knott, Jr., Chairman, Marvin Ward, Secretary) Board of County Commissioners of Forsyth County, North Carolina (Fred D. Hauser, Chairman, G. R. House, Jr., County Manager) City of Winston-Salem, North Carolina (M. C. Benton, Jr., Mayor, John M. Gold, City Manager)
J. Alston Atkins brought this action to require the State of North Carolina and the Winston-Salem/Forsyth County Board of Education to provide a racially integrated unitary school system.[1] Atkins claimed status to maintain his action because he is a taxpayer, the grandparent of children attending the public schools, and a Negro.
In Flast v. Cohen, 392 U.S. 83, 99, 88 S.Ct. 1942, 1952, 20 L.Ed.2d 947 (1968), the Court reiterated:
“The ‘gist of the question of standing’. is whether the party seeking relief has ‘alleged such a personal stake in the outcome of the controversy as to as[*876]sure that concrete adverseness which sharpens the presentation of issues upon which the court so largely depends for illumination of difficult constitutional questions.’ Baker v. Carr, 369 U.S. 186, 204, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962).”
Applying this measure, the district court painstakingly analyzed Atkins’ voluminous and complex bill of complaint and decided that the allegations of Atkins’ interest or stake in the suit were insufficient to establish his standing. Atkins moved for leave to amend his bill of complaint, but his motion was denied. On appeal he asks that the case be remanded so that he can allege and prove the facts necessary to establish his right to maintain the suit. However, developments that have occurred since the district court’s consideration of the case make this procedure unnecessary.
Atkins’ daughter, Simona A. Allen, and his son-in-law, Harvey H. Allen, the parents of pupils attending schools operated by the Winston-Salem/Forsyth County Board of Education, have appeared by counsel to state that upon remand they will apply for intervention as parties plaintiff. Clearly the Allens have standing, and we have no doubt that had they made application to the district court, their motion would have been granted.
Ordinarily intervention cannot be used to revive a law suit, but a court may treat intervention as a separate action, especially when the intervenor has an independent basis for jurisdiction. Fuller v. Volk, 351 F.2d 323, 328 (3d Cir. 1965). Intervention, of course, must be timely, but timeliness is not an absolute. It should be evaluated in light of all the circumstances. C. Wright, Federal Courts § 75, at 285 (1963). The delay in seeking intervention was attributed at oral argument to lack of funds for the employment of counsel.[2] This court has long recognized the intense interest of parents in the education of their children, and it has been solicitous of their opportunity to be heard. Intervention in suits concerning public schools has been freely allowed, and we see no reason why it should be denied here, especially in view of the lack of prejudice to other parties. Furthermore, it appears that since this action was instituted, the parents of a number of other school children have brought suit in the same court seeking much of the same relief.
On remand the Allens may be substituted for Atkins as parties plaintiff with respect to all allegations cognizable by a single judge, and the district court in its discretion may consolidate this suit with the action brought by other parents. The proceedings, however, shall not include convention of a three-judge court.[3]
The judgment of the district court is vacated, and this action is remanded for further proceedings consistent with this opinion.
Atkins also attacked the constitutionality of provisions of the North Carolina Constitution and statutes pertaining to schools. The district court declined to request the appointment of a three-judge court pursuant to 28 U.S.C. § 2284(1) holding that Atkins lacked standing, that many of the laws Atkins attacked had previously been declared unconstitutional, and that the other constitutional questions he raised were plainly unsubstantial. Atkins then petitioned the Court of Appeals for an order requiring the district judge to convene a three-judge court. His petition was summarily denied for the reasons stated by the district court. Atkins v. United States District Court for the Middle District of N. C., No. 13,248 (4th Cir. March 6, 1969). Atkins sought no further review, and this judgment is final. Therefore, this appeal is limited to those issues cognizable by a single judge.
Atkins appeared pro se. He is a member of the Texas bar and the bar of the United States Supreme Court. He is not, however, a member of the North Carolina bar and for that reason he could not represent his daughter and son-in-law without associating local counsel. Now that the Allens have employed an attorney, he may apply on remand for leave to be associated pro hac vice.
See fn. 1, supra.