United States Court of Appeals

FOR THE EIGHTH CIRCUIT

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No. 10-2326

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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.

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--------------------------------------------- *

*

Minnesota Education Trust, *

*

Objector. *

*

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Submitted: February 17, 2011

Filed: July 7, 2011

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Before LOKEN, MELLOY, and SHEPHERD, Circuit Judges.

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SHEPHERD, Circuit Judge.

The American Civil Liberties Union of Minnesota (ACLU) sued public charter

school Tarek ibn Ziyad Academy (TIZA) and other defendants for violations of the

Establishment Clause. Parents of students who attend TIZA moved to intervene on

behalf of their children, but the district court1

 held that the parents did not have

standing and alternatively denied their motion as untimely. The parents appeal, and

although we conclude that the parents have standing, 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 educational environment directed at accommodating

students with cultural ties to Africa, Asia, and the Middle East. The ACLU contends

that the methods TIZA employs to accomplish its objective violate the Establishment
2

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 Cir. 2003). Pendent appellate

jurisdiction allows us to review the district court’s order denying the parents’ motion

for permissive intervention. Id. 

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Clause of the United States and Minnesota 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 school cafeteria in conformity with Islamic

dietary restrictions, recognition of religious 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, 2009, fourteen months after the action was commenced, parents

of Muslim children who attend TIZA moved to intervene under Federal Rule of Civil

Procedure 24, either as a matter of right under 24(a) or permissively under 24(b). The

parents asserted that the First 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 were hypothetical. The district court further

held that even if the parents did have standing, the motion to intervene was untimely.

The parents appeal.2

 

 

II.

We first address whether the parents have Article III standing. Brown v.

Medtronic, Inc., 628 F.3d 451, 455 (8th Cir. 2010) (“Federal courts must address

questions of standing before addressing the merits of a case . . . .”); United States v.

Metro. St. Louis Sewer Dist., 569 F.3d 829, 833 (8th Cir. 2009) (“In our circuit, a
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party seeking to intervene must establish Article III standing in addition to the

requirements of Rule 24.”). We review the 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 intervene 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 also 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 motion to intervene in favor of the

prospective intervenor, accepting all material allegations as true. Id. The parents have

adequately alleged all three prongs of Article III standing. 

First, the parents have alleged 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 because 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 injured by the litigation because either 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 discontinued because they are unconstitutional.

Whatever the appeal of this 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 claim.” ASARCO, Inc. v. Kadish, 490 U.S. 605, 624

(1989) (internal quotation omitted). 
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The parents have also alleged 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 with 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 alleged an injury fairly traceable to the defendant’s

conduct by asserting that if TIZA discontinues the practices challenged by the ACLU,

their personal religious freedoms will be directly affected. See McGowan v.

Maryland, 366 U.S. 420, 429 (1961) (stating that plaintiffs 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 must connect the alleged injury to the ACLU

rather than to TIZA. However, we have previously found intervenor standing in a

procedurally analogous case. In Ubbelohde, the Army Corps of Engineers planned

to release water from a South Dakota reservoir 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 landowners moved to intervene

“based upon the fear that the Court’s ruling would lead to decreased water flow

downstream.” Id. at 1024. We held that the landowners had standing to intervene

even though their alleged injury—decreased water flow downstream—would be

caused by the Corps’ actions if the plaintiffs prevailed in the lawsuit. Id. at 1025.

Accordingly, when the defendant will be compelled to cause the alleged 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 freedom if TIZA stops providing the
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accommodations challenged by the ACLU—would be redressed by a judicial

determination that the policies are permitted 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 timely. 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 disturbed on review.”). The district court

abuses its discretion when it fails to consider a relevant factor that should have been

given significant weight, considers an irrelevant 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. Verizon Commc’ns, Inc. v. Inverizon Int’l, Inc.,

295 F.3d 870, 873 (8th Cir. 2002) (quoting 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 abuses 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 discretion was not guided by erroneous legal

conclusions.”). 

Although the timeliness of a motion to intervene 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 circumstances, we have articulated factors that

the district court should specifically consider: (1) the extent the litigation has

progressed at the time of the motion to intervene; (2) the prospective intervenor’s
3

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 the attorney who originally represented TIZA

because they believed the new attorney would be interested primarily in protecting the

institutional and financial interests of the 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 district court. Campbell v. Davol,

Inc., 620 F.3d 887, 891 (8th Cir. 2010). We note, however, that counsel hired by an

insurer to defend a claim against its insured 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 Clause as a defense until after

counsel chosen by the insurance company assumed representation of the school.

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knowledge of the litigation; (3) the reason for the delay in seeking intervention; and

(4) whether the delay in seeking intervention 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 these factors and found that based on the

circumstances, the motion was not timely. The court listed the relevant factors and

acknowledged that timeliness is determined from 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. The court emphasized that the parents offered

no adequate explanation 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 discovery, and begun taking depositions. 

 The parents contend that the district court abused its discretion by finding that

the fact that extensive motion practice and some discovery had occurred during the
4

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. at 43.) 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).

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parents’ delay in moving to intervene would prejudice the existing parties.4

 The

parents reason that because their legal theories 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 here, where although TIZA introduced the Free

Exercise Clause defensively in its amended answer, the parents’ respective claims of

constitutional entitlement to TIZA’s practices 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 schedule 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 that the parents’ delay

would prejudice the existing parties. 
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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 stated the 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 represent their interests despite their knowledge of

the case and its progress. Under these circumstances, 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 curiam) (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. 
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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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