the district court erred in denying the dumont's motion to intervene for four reasons as i hope to show in greater detail the denial of the motion to intervene should be reversed because the district court didn't analyze the four factors required for intervention as a matter of right didn't consider at all the dumont's constitutional interests disregarded their contract interests in protecting their settlement agreement in the related dumont mitigation and applied the wrong standard in considering whether it should grant permissive intervention in sum the motion to intervene should be granted because the duma it's satisfy all the requirements for intervention as of right and the district court abused its discretion in denying permissive intervention with respect to intervention as of right it's undisputed that their motion was timely and with respect to the other factors the demands have substantial legal interests in this action because both their constitutional rights and the settlement agreement in the dumont case are at stake they showed that absent intervention impairment of their rights is possible which is all that is required under this court's jurisprudence because the state has not and will not make the constitutional arguments that the dumont's press their interests are also impaired because the district court in though you're both asking for the same ultimate judgment it's i think it's clear from this court's precedent in grutter and in jansen that having the same ultimate objective is not enough if that were the case then there would never be an intervention because you're always intervening on the same side of the v as a party here there are very different interests that play for the demands on the state the state has an interest you could have an interest or be asserting a certain right but i'm talking about me or you're cutting it in to different to have an interest in a legal theory as opposed to a substantive roy seems to me i mean what's the i mean the state's arguing the case one way you want it argued a different way how is that give you an intervention of  writers it's more than that we want to argue the case a different way than the state it's it's analogous to the situation in grettir where the demands have articulated specific relevant defense is that the state hasn't presented and the district court actually recognized that in the language used in its decision saying that later developments in the case could create a basis for the way  into interests here are in the do you want interest here are the exact opposite of what st vincent's interests are there they sent think vinson's has an interest in a right to obtain state funding to provide public child welfare services and employ religious eligibility criteria to exclude otherwise qualified same sex couples which is precisely what was challenged by the  the earlier dumont litigation and in that case judge bormann issued a lengthy ninety three page opinion explaining that the german stated claims under the establishment clause and the equal protection clause based on the state's then policy of allowing statements inns and other agencies to discriminate using state contracts and taxpayer funds and they recognize that the dumont's had personally faced an equal treatment by st instance they did they they went to st vincent's twice the st time they went to st vincent's the agency specifically said we do not work with same sex couples and the nd time they called st vincents they just never no answer the phone and they never received a call back they have not since then pursued to foster or adopt child through st vincent's because st vincent's has made it very abundantly clear that it will not work notwithstanding the fact that st vincent's has repeatedly question the sincerity of the demands interest in accessing the foster care system and adopting a child they actually do have two children who've been placed with them right now but  they still want to work with st vincents so the goal of the of these two children that are with the dumont's right now is family reunification so this is a temporary understood to be a temporary foster care placement and the thereafter would seek to access michigan's child welfare system again and in doing that they would want to be able to evaluate the full array of options including st vincent's that would be available to them but for the fact that currently vincents in this case and in the case has articulated a number of reasons why they are special in fact when st vincent's was seeking intervention in the dumont case and seeking intervention on behalf of three individuals who worked with st vincent's they made a number of arguments about how special st vincents is they argue that they have you know more programming that they have these extremely skilled case workers that they work around the clock they they gave numerous examples of why they are special but above that it wouldn't be an answer to say that in the future the  relicensed or could get additional foster children through another agency because that would not take away the constitutional harm of having an and of having an equal access to the state foster and adoption care system i mean it is never been an answer in this jurisprudence to say well you can go to another school or you can go to another restaurant and that would be the very same situation presented here when the again to access the foster adoption care system and on top of that all this goes to their standing on the merits of their claims but that is more which i think they have but that is more than what is required for purposes of intervention which is just a substantial legal interest which has been very broadly construed by this core in miller janson grutter and other cases they have that because their claims are the mirror image of the claims presented by st vincent in this case and the state is not making that is not advancing their interests the state has other divergent interests the state has policymaking interests the state has structural constraints on how it is going to litigate this case that cause it to be and an adequate representative of the dumont's so that's why in ryder there you know the intervenors were allowed to intervene did ask the district court for reconsideration following its denial of the intervention motion which was denied summarily the day after we made that motion we did not we have not thereafter gone back to the district court to say because of the appeal or because of the p r i decision or any other subsequent developments we should he should reconsider his decision because we had this appeal pending but i think actually that standard that the district court applied is not the right one and the fact that the district court at the time of rendering its decision recognize that subsequent about what developments could cause this to exact a virgin's of interest that is in fact laid out means that there that intervention was always warranted because that recognition that interest may divert is what the case law calls for in in identifying intervention as opposed intervention as of right you're right your honor under permissive intervention the standard would be whether whether we've identified a common question of law or fact or whether we would introduce prejudice and delay there's no question that there's a common question of law or fact because the demands questions of law are the inverse of the st vincent's and there's been no suggestion really here that we would introduce prejudice or the way we intervened or sought to intervene at the earliest possible moment and have abided by every deadline never sought an extension we were to rule in your favor as to permissive intervention that we were made and district judge to consider the prejudice because he did not do that here is that something he should do or could we do i think this case is like league of women voters where even though this court said the district court didn't really do what it was required to and didn't really set out a full some analysis and give the court what its what is required to make a decision and then went on to reverse because it was clear from the record that that was appropriate and that all the relevant standards were satisfied and i think that that is the case here where actually the standards for intervention of right and permissive intervention have both been satisfied and you know as to permissive intervention even though it's clear that there is a zone of discretion i don't think i think this falls outside of that zone the entire justification for denying permissive intervention was that it was possible to imagine a basis for that permissive intervention in the future but that the demands of the state were then aligned in all material respects which is not the test under rule twenty four b was not the case then and is certainly not the case now defend against that i don't remember how do they know they are what do they argue against what does the other side argue against granting it now or the actual the application of legal win your honour's were this court to grant intervention in this case it would significantly expand the ability of ideologically interested but not practically affected individuals to intervene in cases across the circuit  a new attorney general elected she had actually campaigned on some of these issues and after the election instituted a new policy that changed the state's approach to contracting with faith based agencies and said if you want to act consistent with your religious beliefs we're going to close you down and that was in the notice that was sent to that was a change of policy in a notice that was sent to all foster care agencies across the state and what was the timing of that in relation to the settlement agreement the timing was similar i believe they were both within two or three months after the january th election was completed but i would say the settlement agreement was was the memorialization and the dismissal of the pending litigation the state policy the state has argued consistently that this has been its approach because nondiscrimination but you have an agreement and it says that this state is going to follow this procedure that you have advocated for unless were ordered otherwise and then the next thing that happens is somebody comes to court arguing against the very terms of your greenman and why wouldn't you have an interest in that if the agreement permits an escape hatch that is being litigated four points on that your honor st as a factual matter judge younker found that the summit was beside the point this litigation is not challenging the terms of the contract it's not challenging whether the or adopt instead they're challenging the state of michigan's actions and their policy which directly affects st vincent nd as this court made clear in blue until and in other cases the ripple on effects of one litigation don't give any party who could potentially have secondary effects and interest in intervening in the underlying lawsuit rd the dumont's interest or the proposed interest in the settlement is is far too broad the settlement itself makes every same sex couple or unmarried couple a beneficiary of the contract and says they have the same right to enforce it so that would mean that essentially anyone who's interested or potentially interested in fostering or adopting could similarly use that contract to intervene and this court has made clear that you can't contract around the intervention requirements this would essentially make the dumont's private attorneys general as you've probably seen from the briefing too they have sought to intervene in a completely unrelated case brought in a different city seventy miles away against catholic charities of west michigan they've never approached that agency or sought to adopt from them and i think that further confirms has as they make clear in their reply brief that page eighteen they see their interest in both cases the same so i think they're what they really want is to intervene in order to defend the state's policy is not because they themselves are practically in directly vince they called st vincent back in two thousand and sixteen but they have not made any of those allegations in this briefing or in this case what they presented to the district court was a motion that simply said that they have a desire like you mentioned earlier to foster and adopt and they'd prefer not to see discrimination within the foster care system that's not a specific and direct what is this would do they have what's the evidence in this particular case just  your honor they have not they did not put anything before the district court in the attach of their they were waiter file they filed a reply that was rejected by judge yonkers so all that was before him was the language in their original motion which is not at all specific and does not address there is no actual evidence that they made the call made these calls or no your honor no nothing was put in the record in this case they only filed a motion itself and i think that goes to the practical interest that they have a legit excuse me st vincents was a horrid to the case that we did in the settlement agreement that's right your honor ok yes and i think that goes to another point i'll address in a minute but just to briefly touch on the practical dumont's have a question of law or in common in both cases and i would point this case and in this case in their argument is that the state state's defense to your lawsuit is based solely on the statute the discrimination statute the state of michigan but they raise questions of law in common between the two cases your honor i would disagree and overlap at all there's no overlap in because they don't actually raise a common question of law or fact if you look at both  and th amendment in the other case they do raise those arguments but i think as this court made clear in bay mills versus snyder and encourage versus dean you can't assert arguments on behalf of another party to make you well have your work with them they've been in st vincents is trying to establish they don't have a duty to do it and the state is not raising all the defenses that they should accorded dumont's that that would affect them your honor a few points on that st the claims or defenses need to be with relation to the dumont specifically all they're seeking to do is raise additional arguments that the state has not made in its own defense but those arguments are not persuasive as the district court found in the plumbing or injunction hearing after hearing from the dumont's it denied their relief and granted a preliminary injunction and similarly two panels of this court have both on the stay in motion and then in dismissing the merits appeal have looked at this and said we think st vincent has a likelihood of success on the merits and if you look at the cases where this court did find permissive intervention it specifically said we did this because there was a claim or defense that the other party had of their own the dumont's have not asserted any claims in this case no counter claims no cross claims and in their proposed answer they say we can't be held liable because we're private individuals and not the state w i don't know how broadly i suppose you would define claim but what about their argument there's they have a union they have this settlement agreement i mean that's a unique thing to them i mean why is their interest in kind of protecting their rights under the settlement agreement why is that not unique enough to them to permit intervention or permissive intervention here on well i wouldn't say that is you know because the state is the other party to that and is making the same arguments on the settlement agreement and they haven't brought a claim or defense of their own related to the settlement agreement because i don't i don't think they would be but what would be the harm in just what ing them birches i mean is it just adding another party it would be under way prejudice something like that i mean if it turns out the moment agreement is you know is it really that different is there is there are for letting them go forward i think the harm would be the burden going forwards in this litigation in the dumont in the original litigation the dumont versus lines litigation the the plaintiffs in that case the proposed intervenors here propounded twenty three multipart interrupted tories to st vincent twenty seven requests for production nine more requests for production forty five requests for admission there's over sixty thousand pages of discovery and in what was actually primarily a legal case they sought to complicate the issues bring a lot more before the court until a resolution of what both a panel of this court and judge anchor found to be primarily a legal issue and i don't think it's it would be beneficial to the resolution of this to allow them to intervene and similarly judge younker permitted the proposed intervenors oral argument time during the summary judgement he considered their evidence i don't think there should be any requirement that a judge specifically refute all the arguments that it disagrees with one ruling in favor of another party so i think there are some serious costs if they were permitted to intervene isn't it kind of contradictory or judge younker denied the motion to intervene without prejudice i don't think so you think if you look i mean prejudice usually occurs the longer it takes to allow the enter the inner to come into the case and that's one of the factors that it's not timely that too much is transpired but the say i'm going to deny it without prejudice and you can renew it later it doesn't make any sense to me i think juncker was being very fair actually to the months he was saying at this time looking at the briefs look at the arguments that are being made i believe your interests are directly aligned with those of the state of knowledge is that they may not be but that's in the future and because they may not be in the future i mean that's the same thing that we had in league of women voters versus johnson isn't it grossman argued yes right now the secretary of state is with us but there's an election coming up in the candidate is advocating the other position on this so are our interests maybe different down the road and that's not really what we hung her hat on and holding there but that that seems like the same situation we've got here that if it may be different than probably you probably are allowing the intervention here i would disagree your honor i think league of women voters is distinguishable because they're the legislators who are raising their own interest so at the outset they had raised a common question they were defending their own rights as legislators which is not something the dumont's are seeking to do here they can't be held liable  but even kind of more directly to your point you know simply trying to make slightly different arguments or something like that doesn't show that their interests are not completely aligned in judge younger leaving the door of the constitutional issues i think are important and for whatever reason the state hasn't raised them and if you're go without having the case really flushed out really fully consider well your honor a few points on that it like i mentioned before the two months were given argument time they filed amicus briefs they filed expert witness reports as well i don't think there's any reason why jonker had to specifically address them in his opinion for for this court to conclude that he did consider the establishment clause arguments on the other side and and i think similarly as he found as a panel this court found since there is a likely to succeed on its st amendment free exercise claims which by definition means that the establishment clause claims can't succeed there they could raise these constitutional claims i mean they're already  were they issue in those in the lawsuit that they settled they did raise those claims they settled that lawsuit they did your honor so can they raise them again or are they barred i'm not sure your honor i think because it's a private settlement it you were to win could they just bring their own affirmative claims again i think that goes to a very important point regarding permissive intervention they haven't sought to do that they could have theoretically filed cross claims or counterclaims asserting their own rights along with that oh wait but they are faulting them for not having separate claims but they can't raise them until they can intervene but they filed a proposed answer which they can also violently intervene so i think the fact that is propose shows what they would argue and they haven't argued that they would assert a different or a stop because they have a proposed answer i mean so soon they could probably amend their answer and added that if they were granted the right to intervene i think that's that's right your honor but i also think if you look at judge younkers permissive intervention decision i'm looking for judicial economy as well you know there are constitutional arguments may or may not have merit but it seems like it makes a lot more sense to have all these all these issues in one case rather than to litigate them separately piecemeal and i think that's what you would have them do we would have piecemeal litigation and i'm not sure that's in the interest of judicial economy until i see my time has expired i mean i think that goes to permissive intervention that i think that's what permissive interventions about and you want to respond to that or not yes your honor on permissive intervention i believe the standard is very deferential to judge younger st of all it's still can be abuse of discretion those of legal women voters shows that's that's certainly right your honor but i think he did consider the right factors  analysis on page fourteen is pretty clear i think if you look at this court's decision in libert that he considered prejudiced i don't think he did he didn't consider prejudice because that was a secondary factor as this court has also said encouraged versus dean and others if you  issue of prejudice or should we be remanded to judge younger for him to rule and i think it would be correct to reminded to judge younger your honor in that's what this court did and previous cases like libert i believe it's more appropriate for him to be the st one to make any factual find  on it or i think you know docket control and docket management are specifically within his expertise he's had the parties he's heard argument from from both sides and from the interviewers on that issue as well as any further questions  you have a summary or just briefly to conclude your honor two points i would say if this court were to grant intervention to the dumont's it would show that essentially any interested or ideologically interested party would have the ability to intervene in a case where they disagree with the result or the potential outcome without having shown a practical and direct substantial legal interest to make them a true party to the case nd i would also just point this court to the two months response to st vincents motion to intervene in the dumont vs lyon case that was a docket number twenty one there i believe their arguments are very contradictory to what they're arguing here and i think there is a clear way to distinguish between what was argued in that case and what was argued here in the original dumont case st vincent would have lost the right to ability to the right to continue contracting with the state if the dumont's were successful that is a direct substantial intangible harm they would have suffered here the dumont's are not able to allege a similar direct and substantial interest they've already been certified by another agency and certification is the the only barrier to you know adopting or fostering a child they've already been certified so there is no reason they would need to go to st vincent they can adopt or foster you talking about the magnitude of the laws because if you the they would only be able to go to certain agencies it's not a decision without consequence well you are i would say you know if you look at coalition to defend affirmative action versus michigan they've already been certified by an agency so i think the certification question is no longer even even a live interest for them they've been certified and the record is pretty clear that they are able to adopt or foster any child in the michigan foster care system and that's all that they've alleged so even going just to impairment that interest is not being impaired because they can do exactly what they've sought to do by by showing they would like to adopt or foster the michigan foster care system the still most to america's decision is in the i don't think so your honor i think this court has been clear that intervention sometimes l so a few things starting with the point that was just made it that it's it's not correct it's not correct that the dumont's can adopt or foster any child in the michigan foster care system i mean if that were correct then st vincent's should drop its case they have said very clearly that they will not work with the demands of the demands will need to be continually recertified that's an annual process which makes sense agencies have to continually reassess the fitness of perspective foster parents and it is not an answer to say that they have they are unharmed because some subset of state contracted agencies will work with them that humans have a substantial legal interest in avoiding the unequal treatment that they will be subjected to if st vincents prevails in this litigation that is not a generalized grievance that doesn't make them welcome in any in any same sex couple or single person intervene in the schools i do think any same sex couple wishing to access the state run foster and adoption care system would have an interest in this case but that's not this case this case involves two plaintiffs who former plaintiffs now perhaps you know at a different posture who actually have foster care children in their homes who actually contacted st vincent's who were actually accessing the system and who whose claim i mean judge white or your kick your question at the beginning of my opponent's argument what precipitated this suit is very clear and it is clear from the briefing that your honour's have that what precipitated this suit was the dumont litigation and it was filed right and was settled allegations from the dumont complaint are all and judge foreman's decision are all over this case they are throughout all the papers and it is just not right to say that the settlement agreement in that case is beside the point it is exactly the point of this litigation that in for stability of that settlement agreement turns on the outcome of this litigation why i don't understand why  adequately presenting arguments when aren't they defending doma and whatever nondiscrimination provisions they agreed would go into these agreements the state has not raised any of the constitutional interests but more than the fact that these constitutional claims why did you settle the other would a geisha why didn't you would agree that we settled the litigation because at that time the state represented that it was going to retain and in force its nondiscrimination clauses in all of its contracts with state contracted agencies but since that time it has not done that it is not sought to enforce a single nondiscrimination provision against any agency and now in this case there is a p r that prevents them from doing so but that's not the case for example in the catholic charities case which st vincents council referenced and they said that it's unrelated but it is highly related if an agency if there is a judgment in another case raising these same issues of the state is not defending the nondiscrimination provision in this case they're not defending those agreements well they haven't sought to enforce the agreements you sue them for breach of contract we have we've set restart your reopen the case before judge bormann but that doesn't mean that we don't have an ongoing interest in this litigation because the state's interests here are relate to policymaking flexibility potentially minimizing litigation it's more than just a divergence of die for defensive is which does also exist that there is no party to this he got the settlement agreement right you agreed to stop with the gating drop your constitutional claims in exchange for this settlement agreement with the word of the state committed to enforcing these nondiscrimination provisions in these agreements right i mean what you could have just litigated the constitutional claims at the time we could have lifted the gaited the constitutional claims at the time but i don't think that that means that the constitutional claims  secondary we at the time it appeared revise them in exchange for this agreement we compromise them in exchange for the agreement only to the extent that at the time the state contracted with demands to conduct itself in a manner that would not violate the demands constitutional rights and now in order to protect their constitutional rights which are at stake in this litigation they have to have an opportunity to appear as parties the state is has dismissed its appeal of the preliminary injunction that and that was entered in this case which the demands would not have done potentially yes i think as were they was it is counterclaims and propose there's there are so counter claims in the proposed answer but there is no requirement in rule twenty four or the case law that in intervene or must plead oppose their intervention they also did not plead any counter or cross claims they pleaded defense is constitutional defenses that are the mirror image of the constitutional defense is that the do you months would have in this case sorry why are these claims are so important why would you why you would a gating them here why don't you just file another complaint instead of going through this whole thing about intervention and whether you can get in whether you can get out what if you file another complaint and say we have these concert claims let's go forward with them we want to maybe they get that case consolidated with the other one i don't know we could do that although i don't think that serves the interests of judicial econom and i don't think that that is required and i don't think that's the test for whether we stand satisfied arabs curious why if it's so important why you just don't do that we could do that but i don't think that that diminishes the do you months right to be part of this litigation under rule twenty four you lose your you lose the value of your settlement agreement we lose the value of our settlement agreement if st vincent prevails in this litigation yes and and it's this very injunction  but stops you from enforcing your settlement agreement because by court order they were told not to do that that's true with respect to st vincents there is no similar preliminary injunction stopping the state from enforcing it agreements with the numerous other state contracted agencies that are also not abiding by their obligations under their contracts but yes with respect to this case that's exactly right and  but and just to revisit quickly judge griffin one point that came up in my opening argument where you said that the possibility of divergent interests was relevant to permissive intervention it is actually relevant to intervention as of right it is one of the factors for intervention as of right like it's harder for you to do establish that it's as a right it's more discretionary permissive and i think judicial khana me even though it's listed in the in the in the court  is one of the one of the considerations i mean when you're when you're exercising discretion i think exercising discretion you can consider a lot of things and to require the dumont's to file another were i was just correcting a statement from my opening argument where i answered judge griffin's question about whether divergence of interests is part of the test for intervention as a matter of right or part of the discretionary permissive intervention analysis and it's the former but it is also the case that the denial of permissive intervention could implicate those interests because of all the reasons judge griffin articulated and the judicial economy considerations and prejudice and the fact that there is unquestionably a common question of law here any further questions will be very