## United States Court of Appeals FOR THE EIGHTH CIRCUIT

___________ No. 10-2326

___________ American Civil Liberties Union of * Minnesota, *
* Plaintiff - Appellee, * * Appeal from the United States v. * District Court for the * District of Minnesota. Tarek ibn Ziyad Academy; Islamic * Relief USA; Alice Seagren, * individually and in her capacity as * Minnesota Commissioner of * Education; Asad Zaman; Asif Rahman; * Mahrous Kandil; Mona Elnahrawy; * Moria Fahey; Mohamed Farid, * individually and in their capacities as * Directors of Tarek ibn Ziyad Academy, *
* Defendants, *
* Javed Mohammad, as next friend of his * children M. Mohammad and * F. Mohammad; Ahmed Abuelyaman, as * next friend of his child I. Abuelyaman; * Abdu Tuku, as next friend of his * children Y. Tuku and E. Tuku; Adan * Mohamed, as next friend of his children * A. Issa, A. Issa, A. Issa, I. Issa and * A. Issa, who are all students at Tarek * ibn Ziyad Academy, * * Movants - Appellants, *1 The Honorable Donovan W. Frank, United States District Judge for the District of Minnesota.
-2- --------------------------------------------- *
* Minnesota Education Trust, *
* Objector. *
*

___________ Submitted: February 17, 2011 Filed: July 7, 2011(Corrected: 07/12/2011)

___________ Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.

___________ SHEPHERD, Circuit Judge.

The American Civil Liberties Union of Minnesota (ACLU) sued public charter school Tarek ibn Ziyad Academy (TIZA) and othe r defendants for violations of the Establishment Clause. Parents of student s who attend TIZA m oved to intervene on behalf of their children, but the district court 1 held that the parents did not have standing and alternatively deni ed their motion as untimely. The parents appeal, and although we conclude that the parents have standi ng, we affirm the district court’s denial of the parents’ motion.

I.

TIZA, a public charter school formed under Minnesota Statute section 124D, seeks to provide an alternative educati onal environment directed at accommodating students with cultural ties to Africa, Asia , and the Middle East. The ACLU contends that the methods TIZA employs to accomplis h its objective violate the Establishment2 The district court’s order denying the parents’ motion to intervene of right is immediately appealable as a final judgment. South Dakota ex rel. Barnett v. U.S. Dep’t of Interior , 317 F.3d 783, 785 n.2 (8th Ci r. 2003). Pendent appellate jurisdiction allows us to review the distri ct court’s order denying the parents’ motion for permissive intervention. Id.
-3- Clause of the United States and Minneso ta Constitutions. The ACLU filed suit against TIZA on January 21, 2009, alleging that TIZA promotes or prefers the religion of Islam, pointing to, among other things, the suspension of classes for daily and weekly prayer, the serving of food in the sc hool cafeteria in conformity with Islamic dietary restrictions, recognition of religi ous holidays on the school calendar, dress restrictions in conformity with Islamic rules, the permitting of religious materials being posted in school hallways and classrooms, and the providing of school transportation only after a religious studies program concludes in the afternoon.

On March 5, 2010, fourteen months af ter the action was commenced, parents of Muslim children who atte nd TIZA moved to intervene under Federal Rule of Civil Procedure 24, either as a matter of right unde r 24(a) or permissively under 24(b). The parents asserted that the Fi rst Amendment either permits or requires TIZA to provide the accommodations challenged by the ACLU as unconstitutional. The district court denied the parents’ motion to intervene, holding that the parents did not have Article III standing because their alleged injuries we re hypothetical. The district court further held that even if the parents did have st anding, the motion to intervene was untimely. The parents appeal. 2

II.

We first address whether the parents have Article III st anding. Brown v. Medtronic, Inc. , 628 F.3d 451, 455 (8th Cir. 2010) (“Federal courts must address questions of standing before addressing the me rits of a case . . . .”); United States v. Metro. St. Louis Sewer Dist. , 569 F.3d 829, 833 (8th Cir. 2009) (“In our circuit, a-4- party seeking to intervene must establish Article III st anding in addition to the requirements of Rule 24.”). We review th e district court’s standing determination de novo. Jones v. Gale , 470 F.3d 1261, 1265 (8th Cir. 2006).

When a party opposes a motion to inte rvene on the basis of standing, the prospective intervenor must allege facts showing the familiar elements of Article III standing. Metro. St. Louis Sewer Dist. , 569 F.3d at 834; Mausolf v. Babbitt , 85 F.3d 1295, 1301 (8th Cir. 1996). The prospective intervenor “must clearly allege facts showing an injury in fact.” Metro. St. Louis Sewer Dist. , 569 F.3d at 833-34. The prospective intervenor must al so allege facts showing that the “alleged injury is fairly traceable to the defendant’s conduct and that a favorable decision will likely redress the injury.” Id. at 834. We must construe the mo tion to intervene in favor of the prospective intervenor, accepting all ma terial allegations as true. Id. The parents have adequately alleged all three prongs of Article III standing.

First, the parents have alle ged an injury in fact. An injury in fact means an invasion of a “legally cognizable right ,” Braden v. Wal-Mart Stores, Inc. , 588 F.3d 585, 591 (8th Cir. 2009), that is “concrete , particularized, and either actual or imminent,” Metro. St. Louis Sewer Dist. , 569 F.3d at 833-34. The parents have identified a legally cognizable right becau se they contend their children’s First Amendment right to the free exercise of religion would be infringed if TIZA discontinued the practices challenged by the ACLU. The ACLU responds that the parents could never be injure d by the litigation because eith er the ACLU’s claims will be dismissed, leaving the school practices intact, or the ACLU will prevail, requiring the school practices to be altered or di scontinued because they are unconstitutional. Whatever the appeal of th is argument, it is directed at the merits, and “although federal standing often turns on the nature and source of the claim asserted, it in no way depends on the merits of the cl aim.” ASARCO, Inc. v. Kadish , 490 U.S. 605, 624 (1989) (internal quotation omitted).-5- The parents have also alle ged facts showing that the injury is imminent. They allege that if the ACLU wins on the merits, they will suffer an injury because TIZA will immediately stop providing them w ith constitutionally required religious accommodations. See South Dakota v. Ubbelohde , 330 F.3d 1014, 1024-25 (8th Cir. 2003) (holding that prospective intervenors met the imminence requirement when they alleged that an injury would occur upon the success of the plaintiffs’ lawsuit).

Second, the parents have a lleged an injury fairly traceable to the defendant’s conduct by asserting that if TIZA disconti nues the practices challenged by the ACLU, their personal religious freedoms w ill be directly affected. See McGowan v. Maryland , 366 U.S. 420, 429 (1961) (stating that pl aintiffs must allege infringement of their own religious freedoms in order to have standing to bring a free exercise claim). The ACLU responds that because the parents and TIZA seek the same outcome in the lawsuit, the parents mustconnect the alleged injury to the ACLU rather than to TIZA. Howe ver, we have previously f ound intervenor standing in a procedurally analogous case. In Ubbelohde , the Army Corps of Engineers planned to release water from a South Dakota reser voir into the Missouri River in order to maintain downstream river flow during a drought. Ubbelohde , 330 F.3d at 1021. Several states filed suit in federal court seeking an injunction to prevent the Corps from releasing the water. Id. at 1022. Downstream landow ners moved to intervene “based upon the fear that the Court’s ru ling would lead to decreased water flow downstream.” Id. at 1024. We held that the landowners had standing to intervene even though their alleged injury—decr eased water flow downstream—would be caused by the Corps’ actions if the plain tiffs prevailed in the lawsuit. Id. at 1025. Accordingly, when the defendant will be comp elled to cause the a lleged injury to the intervenor if the plaintiff prevails, the intervenor satisfies the traceability requirement even though the defendant and the intervenor seek the same outcome in the case.

Finally, the parents have shown redressability because the injury alleged—impingement of religious fr eedom if TIZA stops providing the-6- accommodations challenged by the ACLU—would be redressed by a judicial determination that the policies are pe rmitted under the Establishment Clause. Accordingly, the parents have standing to intervene.

III.

The parents moved to intervene both as of right and permissively. Fed. R. Civ. P. 24(a), (b). Whether a person moves for “intervention of right” or for “permissive intervention,” the motion must be timel y. Fed. R. Civ. P. 24; see also NAACP v. New York , 413 U.S. 345, 365 (1973). We review the district court’s timeliness determination for an abuse of discretion. United States v. Ritchie Special Credit Invs. , 620 F.3d 824, 831 (8th Cir. 2010); see also NAACP , 413 U.S. at 365 (“[I]t is to be determined by the court in the exercise of its sound discretion; unless that discretion is abused, the court’s ruling will not be di sturbed on review.”). The district court abuses its discretion when it fails to consid er a relevant factor that should have been given significant weight, considers an irre levant or improper factor and gives it significant weight, or considers all the proper factors but commits a clear error of judgment in weighing those factors. Veriz on Commc’ns, Inc. v. Inverizon Int’l, Inc. , 295 F.3d 870, 873 (8th Cir. 2002) (quo ting Kern v. TXO Prod. Corp. , 738 F.2d 968, 970 (8th Cir. 1984)) (describing in general the abuse-of-discretion standard of review). In addition, the district court a buses its discretion if it makes a legal error. Koon v. United States , 518 U.S. 81, 100 (1996) (“The abuse-of-discretion standard includes review to determine that the di scretion was not guide d by erroneous legal conclusions.”).

Although the timeliness of a motion to inte rvene is a decision within the district court’s discretion, Minn. Milk Producers Ass’n v. Glickman , 153 F.3d 632, 646 (8th Cir. 1998), and is based on all of the circum stances, we have articulated factors that the district court should specifically c onsider: (1) the extent the litigation has progressed at the time of the motion to in tervene; (2) the prospective intervenor’s3 The parents contend for the first time on appeal that the reason they delayed in intervening was, in part, that TIZA’s insurance company assumed responsibility for defending TIZA in the case and replaced TIZA’s original attorney “with counsel appointed and controlled by the insurance company.” (Appellant’s Opening Br. at 45.) The parents then wished to hire th e attorney who originally represented TIZA because they believed the new attorney would be interestedprimarily in protecting the institutional and financial interests of th e school rather than defending the school’s operational practices. (Appellant’s Reply Br . at 31.) We decline to address these arguments because they were not presented to the districtcourt. Campbell v. Davol, Inc. , 620 F.3d 887, 891 (8th Cir. 2010). We not e, however, that counsel hired by an insurer to defend a claim against its insu red represents the insured, Pine Island Farmers Coop. v. Erstad & Riemer, P.A. , 649 N.W.2d 444, 449 (Minn. 2002) (en banc), and in fact, TIZA did not raise the Free Exercise Cl ause as a defense until after counsel chosen by the insurance company assumed representation of the school.
-7- knowledge of the litigation; (3) the reason fo r the delay in seeking intervention; and (4) whether the delay in seeking interv ention may prejudice the existing parties. Ritchie , 620 F.3d at 832; see also United States v. Union Elec. Co. , 64 F.3d 1152, 1159 (8th Cir. 1995).

Here, the district court considered th ese factors and found that based on the circumstances, the motion was not timely. The court listed the relevant factors and acknowledged that timeliness is determinedfrom all the circumstances. The court observed that even though the parents knew of the suit from its inception, they filed their motion to intervene fourteen months after the ACLU filed suit and more than a month after the deadline to add parties. Th e court emphasized thatthe parents offered no adequate explanati on for the lengthy delay. 3 Finally, the court stated that the delay would prejudice the existing parties because they had already engaged in extensive motion practice, commenced written di scovery, and begun taking depositions.

The parents contend that the district court abused its discretion by finding that the fact that extensive mo tion practice and some discove ry had occurred during the4 The parents also argue that “it is an abuse of discretion for a district court to deny intervention on timeliness grounds to otherwise qualified persons with significant rights at stake in the litigation unless their delay caused genuine prejudice to the parties.” (Appellants’ Opening Br. at43.) We have consistently held, however, that the district court should consider all of the circumstances—no one factor is dispositive. See, e.g. , United States v. Ritchie Special Credit Invs. , 620 F.3d 824, 831 (8th Cir. 2010).
-8- parents’ delay in moving to interven e would prejudice the existing parties. 4 The parents reason that because their legal theori es arise from the same set of facts already in issue, their delay caused no prejudice to the existing parties despite the motion practice and discovery the parties had completed. The introduction of a new legal theory, however, could change the parties’ respective strategies or framing of the issues during preliminary motion practice as readily as separate factual circumstances could. This is particularly true he re, where although TIZA introduced the Free Exercise Clause defensively in its amended answer, the parents’ respective claims of constitutional entitlement to TIZA’s practi ces would require individualized legal inquiry. See Harris v. McRae , 448 U.S. 297, 321 & n.24 (1980) (holding that a free exercise claim requires evidence showing how a particular state practice affects an individual in the practice of their religion).

In addition, when the discovery sc hedule is set, written discovery has commenced, and some depositions have been taken in a lawsuit, the addition of new parties often results in some prejudice to the existing parties, though perhaps slight here. See League of United Latin Am. Citizens v. Wilson , 131 F.3d 1297, 1303-04 (9th Cir. 1997) (finding that the addition of a new party would inevitably delay the litigation and was prejudicial because of the long delay); Mountain Top Condo. Ass’n v. Dave Stabbert Master Builder, Inc. , 72 F.3d 361, 370 (3d Cir. 1995) (considering the amount of discovery that had occurred in assessing prejudice to existing parties). We cannot say the district court abused its discretion in finding thatthe parents’ delay would prejudice the existing parties.-9- Moreover, even absent any prejudice, the district court was free to conclude that given the progress of the litigation, the parents’ knowledge of it, and the parents’ failure to adequately explain the delay, the motion was untimely. See, e.g. , Arrow v. Gambler’s Supply, Inc. , 55 F.3d 407, 409 (8th Cir. 1995) (holding that even if intervention would not prejudice existing parties, the progress of the litigation and intervenors’ knowledge of it permitted the district court to find motion untimely); Ark. Elec. Energy Consumers v. Middle S. Energy, Inc. , 772 F.2d 401, 403 (8th Cir. 1985) (affirming denial of motion to intervene on timeliness basis when the district court made no finding of prejudice but based decision on the other relevant factors).

Because the district court correctly statedthe legal standard and considered all the relevant factors, we must find that the district court made a clear error of judgment in order to reverse. See Verizon Commc’ns , 295 F.3d at 873. It is evident that for fourteen months, the parents were content to remain aloof from this litigation and dependent on TIZA to adequately represen t their interests desp ite their knowledge of the case and its progress. Under these circ umstances, we cannot say the district court made a clear error of judgment in finding the motion untimely.

Finally, the ACLU filed a motion to supplement the record on appeal with developments in the factual record before the district court. Generally, we cannot consider evidence that was not contained in the record below when the district court rendered its decision. Allen v. U.S. Air Force , 603 F.3d 423, 433-34 (8th Cir.), cert. denied , 131 S. Ct. 830 (2010). Because the proffered material would not affect the outcome of the appeal, we deny the ACLU’s motion. Rivera v. Reisch , 351 F. App’x 155, 156 (8th Cir. 2009) (unpublished per cu riam) (denying motion to supplement the record where proffered material would not affect the outcome). The ACLU’s motion to seal is also denied as moot.-10- IV.

We affirm the district court’s denial of the parents’ motion to intervene.

LOKEN, Circuit Judge, dissents from part III.

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