Freedom from Religion Foundation et al v. Geithner et al, No. 2:2009cv02894 - Document 21 (E.D. Cal. 2009)
Court Description: MEMORANDUM AND ORDER denying 6 Applicant's Motion to Intervene, signed by Judge William B. Shubb on 12/1/09. It is further ordered that the applicant's motion for leave to file a brief as amicus curiae be, is GRANTED. (Kastilahn, A)
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Freedom from Religion Foundation et al v. Geithner et al Doc. 21 1 2 3 4 5 6 7 8 UNITED STATES DISTRICT COURT 9 EASTERN DISTRICT OF CALIFORNIA 10 ----oo0oo---11 12 13 14 15 16 17 18 FREEDOM FROM RELIGION FOUNDATION, INC.; PAUL STOREY; BILLY FERGUSON; KAREN BUCHANAN; JOSEPH MORROW; ANTHONY G. ARLEN; ELISABETH STEADMAN; CHARLES AND COLLETTE CRANNELL; MIKE OSBORNE; KRISTI CRAVEN; WILLIAM M. SHOCKLEY; PAUL ELLCESSOR; JOSEPH RITTELL; WENDY CORBY; PAT KELLEY; CAREY GOLDSTEIN; DEBORAH SMITH; KATHY FIELDS; RICHARD MOORE; SUSAN ROBINSON; AND KEN NAHIGIAN, NO. CIV. 09-2894 WBS DAD MEMORANDUM AND ORDER RE: MOTION TO INTERVENE 19 Plaintiffs, 20 v. 21 22 23 24 25 26 27 28 TIMOTHY GEITHNER, in his official capacity as Secretary of the United States Department of the Treasury; DOUGLAS SHULMAN, in his official capacity as Commissioner of the Internal Revenue Service; and SELVI STANISLAUS, in her official capacity as Executive Officer of the California Franchise Tax Board, Defendants, 1 Dockets.Justia.com 1 2 3 AND PASTOR MICHAEL RODGERS AND DOES 1-100, proposed Intervenors-Defenants / 4 5 ----oo0oo---- 6 On October 16, 2009, the Freedom From Religion 7 Foundation, Inc. (“FFRF”) and named plaintiffs filed a Complaint 8 in this court seeking a declaration that 26 U.S.C. §§ 107 and 9 265(a)(6) violate the Establishment Clause of the United States 10 Constitution and injunctive relief. 11 Michael Rodgers moved to intervene as a defendant in this action. 12 I. 13 On October 22, 2009, Pastor Factual and Procedural Background On October 16, 2009, the Freedom From Religion 14 Foundation, Inc. (“FFRF”) and named plaintiffs filed a Complaint 15 in this court seeking a declaration that 26 U.S.C. §§ 107 and 16 265(a)(6) violate the Establishment Clause of the United States 17 Constitution and injunctive relief. 18 107 and 265(a)(6) provide preferential tax benefits to “ministers 19 of the gospel,” and are administered by the Internal Revenue 20 Service (“IRS”) and the Department of the Treasury (“Treasury”). 21 (Docket No. 1.) Sections Section 107 of the Internal Revenue Code (“IRC”) allows 22 “ministers of the gospel” to exclude their rental allowance or 23 rental value of any home furnished to them as part of their 24 compensation from gross income for income tax purposes. 25 U.S.C. § 107. 26 minister of the gospel be “duly ordained, commissioned, or 27 licensed” in order to be entitled to the tax benefit. 28 43.) 26 The plaintiffs allege that the IRS requires that a (Compl. ¶ The plaintiffs further allege that the § 107 exclusion is 2 1 available only when the minister is given use of the house or 2 receives a housing allowance as compensation for services 3 performed “in the exercise of” his ministry. 4 regulations allegedly clarify the requirements to receive 5 religious tax benefits. 6 Id. ¶ 45. Treasury Id. ¶¶ 43-44, 46-49. Section 265(a)(6) of the Internal Revenue Code allows a 7 minister of the gospel to claim deductions under §§ 163 and 164 8 of the Internal Revenue Code for residential mortgage interest 9 and property taxes. 26 U.S.C. § 265(a)(6). Plaintiffs allege 10 that ministers of the gospel receive the deduction even though 11 the money used to pay those expenses was received as a tax-exempt 12 § 107 allowance, and that non-clergy taxpayers cannot make 13 similar deductions. 14 (Compl. ¶ 50.) The plaintiffs further allege that sections 17131.6 and 15 17280(d)(2) of the California Revenue and Taxation Code violate 16 the Establishment Clause of the United States and California 17 Constitutions. 18 §§ 170 and 265(a)(6) of the Internal Revenue Code. 19 Id. ¶¶ 37-38. These provisions allegedly mirror Id. Plaintiffs allege that all of the above tax provisions 20 violate the Establishment Clause of the United States 21 Constitution, which provides that “Congress shall make no law 22 respecting an establishment of religion.” 23 Plaintiffs further allege that the California Constitution 24 contains a similarly worded Establishment Clause which is 25 violated by the California Revenue and Taxation Code provisions. 26 See Cal. Const. art. I § 4. 27 above provisions of the California Revenue and Taxation Code 28 violate Article 16, Section 5 of the California Constitution, U.S. Const. amend I. Finally, plaintiffs allege that the 3 1 which prohibits aid in support of “any religious sect, church, 2 creed, or sectarian purpose.” 3 Cal. Const. art. XVI § 5. On October 22, 2009, Pastor Michael Rodgers moved to 4 intervene as a defendant in this action. 5 minister of the gospel in the Sacramento area who currently uses 6 the ministerial tax exemption housing allowance challenged by 7 plaintiffs in this action. 8 behalf of himself and Does 1-100 ministers within the 9 jurisdiction of the Eastern District of California. 10 II. Pastor Rodgers is a Pastor Rodgers moves to intervene on Discussion Pastor Rodgers seeks to intervene pursuant to Federal 11 12 Rule of Civil Procedure 24(a)(2), or, alternatively, Rule 13 24(b)(1)(B). 14 15 16 17 18 Rule 24 provides: (a) Intervention of Right. On timely motion, the court must permit anyone to intervene who: . . . (2) claims an interest relating to the property or transaction that is the subject of the action, and is so situated that disposing 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. 19 20 21 22 (b) Permissive Intervention. (1) In General. On timely motion, the court may permit anyone to intervene who: . . . (B) has a claim or defense that shares with the main action a common question of law or fact. 23 25 (3) Delay or Prejudice. In exercising its discretion, the court must consider whether the intervention will unduly delay or prejudice the adjudication of the original parties’ rights. 26 A. 24 Intervention of Right 27 Rule 24(a)(2) is subdivided into four elements: 28 (1) [T]he applicant's motion must be timely; (2) the 4 1 2 3 4 applicant must have a ‘significantly protectable’ interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may as a practical matter impair or impede its ability to protect that interest; and (4) the applicant's interest must be inadequately represented by the parties to the action. 5 6 California ex rel Lockyer v. United States, 450 F.3d 436, 440-41 7 (9th Cir. 2006) (citing Sierra Club v. EPA, 995 F.2d 1478 (9th 8 Cir. 1993)). 9 showing that all of these four elements are met, Prete v. The party seeking intervention bears the burden of 10 Bradbury, 438 F.3d 949, 954 (9th Cir. 2006), but Rule 24(a) is 11 “construed broadly in favor of applicants for intervention.” 12 Greene v. United States, 996 F.2d 973, 976 (9th Cir. 1993). 13 Because the government concedes that the proposed 14 interveners meet the first and second elements of the test for 15 intervention as of right, (Response Mot. Intervene (“Response”) 16 3-4), the court addresses only the third and fourth elements of 17 the test. 18 1. 19 Applicant’s Ability To Protect His Interest May Be Impaired 20 To satisfy the third element of the test, the potential 21 intervenor must show that his ability to protect his interest may 22 be impaired if he is not allowed to intervene in the action. 23 Fed. R. Civ. P. 24(a)(2). 24 concedes that the pastor’s1 financial interest in continuing to 25 receive the income tax exemption likely qualifies as a As stated above, the government 26 27 28 1 Potential intervenors include Pastor Rodgers and Does 1-100. Because no facts are alleged regarding the Does, the motion to intervene must be construed only as to Pastor Rodgers. 5 1 “significantly protectable interest” that meets the second 2 element of the test for intervention of right. 3 and potential intervenor also agree that “[a] ruling on the 4 constitutionality of the statutes at issue is a disposition that 5 might affect Applicant’s interests.” 6 potential intervenor’s interests “might not be ‘impaired’ if they 7 have ‘other means’ to protect them.” 8 The government asserts that the proposed intervenor can 9 adequately protect his interest in receiving the tax exemptions 10 by filing an amicus brief with the court, and that therefore he 11 does not qualify for intervention as of right. 12 The government (Response 4.) However, a Lockyer, 450 F.3d at 442. The government does not explain why filing an amicus 13 brief should qualify as an “other means” by which potential 14 intervenors can protect their interests, nor does it cite any 15 cases in support of this interpretation. 16 that proposed intervenors had “other means” to protect their 17 interests have done so when other avenues of legal process have 18 been available. 19 370 F.3d 915 (9th Cir. 2004) (separate district court process for 20 approving claims against debtor sufficient to protect proposed 21 intervenor/creditor interest); United States v. City of Los 22 Angeles, 288 F.3d 391 (9th Cir. 2002) (possibility of individual 23 suits against police officers sufficient to protect interests of 24 community groups seeking to protect members from unconstitutional 25 police practices). 26 seems a meager substitute in comparison, and would deny the 27 potential intervenors a voice in key junctures of this 28 litigation. Indeed, cases finding See, e.g., United States v. Alisal Water Corp., The filing of an amicus brief to the court 6 1 Additionally, the government and potential intervenor 2 agree that it is likely that the intervenor lacks a separate 3 legal forum in which to litigate the constitutionality of the 4 income tax exemptions. 5 intervention, the government asserts that the proposed intervenor 6 lacks independent grounds for jurisdiction and would be unable to 7 bring his own lawsuit declaring the statute in question 8 constitutional. 9 (empowering courts to “declare the rights and other legal In its argument against permissive (Response 7 (citing 28 U.S.C. § 2201(a) 10 relations of any interested party seeking such a declaration” in 11 “a case of actual controversy within its jurisdiction, except 12 with respect to Federal taxes other than actions brought under 13 section 7428 of the Internal Revenue Code.”) (emphasis in 14 Response)).) 15 The applicant cites Lockyer, which found that, if not 16 allowed to intervene, healthcare providers who did not provide 17 abortion had “no alternative forum” in which they could mount a 18 robust defense of a statute forbidding states from discriminating 19 against healthcare providers that did not provide abortions. 20 at 442. 21 proposed intervenor in that case had no enforceable rights. 22 at 443. 23 argue for their interpretation of the statute. 24 that case was struck down or narrowed, the proposed intervenor 25 would have no alternative forum in which to contest that 26 decision. 27 a “case or controversy” for purposes of establishing jurisdiction 28 would not likely arise unless and until the plaintiffs in this Id. Because the statute at issue was a spending measure, the Id. As a result, they could not bring a separate suit to Id. If the statute in The proposed intervenor here correctly notes that 7 1 action succeed at striking down the income tax exemptions. 2 Therefore, the proposed intervenor has shown that his 3 ability to protect his interest in the continued enforcement and 4 constitutionality of the income tax exemptions may be impaired if 5 he is not allowed to intervene in this action, and the third 6 element is met. 7 2. 8 The final element is that proposed intervenors' 9 Adequacy of Representation interests are not being adequately represented by the current 10 parties. 11 substantially affected in a practical sense by the determination 12 made in an action, as a general rule that absentee should be 13 entitled to intervene. 14 Berg, 268 F.3d 810, 822 (9th Cir. 2001)(discussing advisory 15 committee note to Rule 24). 16 in showing inadequate representation is typically minimal and is 17 satisfied by a showing that representation of their interests may 18 be inadequate. Arakaki, 324 F.3d at 1086. 19 Fed. R. Civ. P. 24(a). a. If an absentee will be Sw. Ctr. for Biological Diversity v. The burden on proposed intervenors The Same “Ultimate Objective” in the Suit The most important consideration in determining the 20 21 adequacy of representation is how the proposed intervenor's 22 interests compare with the interests of the existing parties. 23 Id. 24 have the same ultimate objective, a presumption of adequacy of 25 representation arises.” 26 Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003)). 27 the parties share the same ultimate objective, differences in 28 litigation strategy do not normally justify intervention. “When an applicant for intervention and an existing party Lockyer, 450 F.3d at 443 (quoting 8 When Id.; 1 see also Perry v. Proposition 8 Official Proponents, --- F.3d --- 2 -, No. 09-16959, 2009 WL 3857201, at *1 (9th Cir. Nov. 19, 2009) 3 (denying intervention of right because “differences [between 4 proposed intervenors and existing parties] are rooted in style 5 and degree, not the ultimate bottom line. 6 and litigation strategy is not tantamount to divergence over the 7 ultimate objective of the suit.”). 8 adequacy applies, the intervenor can rebut it “only with a 9 ‘compelling showing’ to the contrary.” 10 11 Divergence of tactics When this presumption of Perry, No. 09-16959, 2009 WL 3857201, at *2 (quoting Arakaki, 324 F.3d at 1086). “There is also an assumption of adequacy when the 12 government is acting on behalf of a constituency that it 13 represents.” 14 F.3d at 1086). 15 acts on behalf of the constituency that it represents. 16 absence of a very compelling showing to the contrary, it will be 17 presumed that a state adequately represents its citizens when the 18 applicant shares the same interest.” 19 F.3d at 1086)(internal quotation marks and citation omitted, 20 emphasis added). 21 inadequacy exists where the intervenor demonstrates a likelihood 22 that the government will abandon or concede a potentially 23 meritorious reading of the statute. Lockyer, 450 F.3d at 443. (quoting Arakaki, 324 When the government is involved in a lawsuit, it Id. “In the (quoting Arakaki, 324 A very compelling showing of the government's Lockyer, 450 F.3d at 444. 24 The proposed intervenor/defendant and the government 25 here share the same interest and ultimate objective: upholding 26 the constitutionality of the ministerial housing tax exemptions. 27 As a minister who receives the housing allowance tax exemption, 28 the applicant seeks to intervene as of right in order to litigate 9 1 this action on the merits and defend against the plaintiffs’ 2 facial constitutional attack. 3 statutes at issue to be upheld. 4 asserted that it intends to file a motion to dismiss in this 5 action and fully defend the challenged provisions of the Internal 6 Revenue Code. 7 United States–including the provisions of the IRC at issue 8 here–are enforced and upheld. 9 His ultimate objective is for the Likewise, the government has Its ultimate objective is that the laws of the Arguments made by the applicant, addressed fully below, 10 reflect mere potential differences in degree or litigation 11 strategy, and fail to allege any deviation in the ultimate 12 objective of the United States as asserted at oral argument. 13 Therefore, the applicant must make a “very compelling showing” 14 that the government will inadequately represent his interests in 15 order to intervene as of right. 16 3857201, at *3. 17 b. 18 19 See Perry, No. 09-16959, 2009 WL Rebutting the Presumption of Adequate Representation The applicant here generally makes vague and 20 unsubstantiated claims that the defendants are “at bottom 21 politically-motivated bodies” that will make litigation 22 decisions, such as decisions to appeal adverse rulings, based on 23 mere political expediency. 24 true that the Solicitor General of the United States determines 25 whether the United States will appeal adverse rulings made by 26 lower courts, this fails to amount to a “very compelling showing” 27 to overcome the presumption of adequate representation by the 28 United States. (Mot. Intervene 10-11.) 10 While it is 1 The applicant compares his situation to Lockyer, but 2 the government in that case was advocating for a limiting 3 construction of the federal statute that was much narrower than 4 advocated-for by the proposed intervenors. 5 Tucson Women’s Health Center v. Ariz. Med. Bd., No. 09-1909 (D. 6 Ariz. Nov. 24, 2009) (finding that defendants may not share the 7 same ultimate objective as proposed intervenors because 8 defendants argued for a limiting interpretation of statute to 9 preserve its constitionality). 10 Id. at 444; see also The government in this case has yet to file a 11 responsive pleading but has represented it intends to fully 12 defend the statutes at issue. 13 282 F.3d 1119 (9th Cir. 2002), the court of appeals sua sponte 14 asked the parties to brief the question of whether the 15 ministerial housing exemption of IRC § 107 violated the 16 Establishment Clause. 17 defending its constitutionality, 18 Supp. Brief for Appellant (Docket No. 50) (9th Cir. May 3, 2002), 19 which is evidence that the government will likewise defend the 20 statute in this case. 21 Indeed, in Warren v. Commissioner, There, the government filed a brief Warren v. Comm’r, No. 00-71217, The applicant argues that the mere fact that the IRS in 22 Warren prosecuted Rev. Warren for what it believed to be 23 excessive housing claims under the old IRC § 107 shows that the 24 government has a different view of the scope of the exemption 25 sufficient to warrant intervention as of right. 26 Rev. Warren’s housing exemption claims, however, the IRS was 27 merely enforcing IRC § 107 against potential abuse. 28 the IRS later entered into a stipulation of dismissal with Rev. 11 In investigating Furthermore, 1 Warren, allowing him to claim the full amount of his housing 2 allowance as exempt from federal income taxes. 3 1012, 1014 n.2 (9th Cir. 2002) (denying Prof. Chemerinsky’s 4 motion to intervene). 5 Warren, 302 F.3d Finally, the Clergy Housing Allowance Clarification Act 6 of 2002, Pub. L. No. 107-181, 116 Stat. 583 (codified at 26 7 U.S.C. § 107), adopted the interpretation of IRC § 107 put 8 forward by the IRS in Warren, and modified § 107 to expressly 9 limit the clergy housing allowance to the fair rental value of a 10 minister’s housing. 26 U.S.C. § 107. Any difference in opinion 11 regarding § 107's scope that may be shown by the IRS’s conduct in 12 Warren is therefore irrelevant today. 13 seen as some evidence to support the proposition that the 14 government may in the future take a narrower view of the 15 ministerial housing exemption statutes than the applicant would, 16 the applicant has not shown that the government would concede any 17 “necessary elements to the proceeding.” 18 2009 WL 3857201, at *6 (quoting Arakaki, 324 F.3d at 1086) 19 (emphasis in Perry, internal quotations omitted). Even if Warren could be Perry, No. 09-16959, 20 In further support of his argument that the government 21 cannot adequately represent his interests, the applicant asserts 22 that it is possible that the government may not appeal an adverse 23 ruling, whereas the applicant states that he would undoubtedly 24 appeal if he were a party to this action. 25 has allowed intervention of right post-judgment for the purpose 26 of appealing. 27 33 (9th Cir. 1991) (granting intervention of right to principal 28 sponsor of ballot initiative for purposes of appeal when state The court of appeals See Yniguez v. State of Ariz., 939 F.2d 727, 731- 12 1 government decided not to appeal adverse district court ruling) 2 (citing Legal Aid Soc’y of Alameda County v. Brennan, 608 F.2d 3 1319, 1328 (9th Cir. 1979) (“Post-judgment intervention for 4 purposes of appeal may be appropriate if the intervenors act 5 promptly after judgment, and meet traditional standing 6 criteria.”) (citations omitted)). 7 move to intervene for purposes of appeal should the government 8 fail to appeal an adverse ruling. 9 Therefore, the applicant can The applicant also asserts that the named defendants 10 face an inherent conflict of interest and cannot possibly 11 represent his interests adequately because the IRS and California 12 Franchise Tax Board stand to gain “a staggering windfall” of tax 13 revenues if the statutes are ultimately struck down. 14 the applicant believes that the federal defendants have nothing 15 to lose if the revenue statutes are overturned. 16 would allow intervenors as of right in any suit challenging a 17 provision of the Internal Revenue Code, and possibly in any suit 18 challenging any other spending statute. 19 In essence, This reasoning Furthermore, this cynical view of the United States 20 government ignores the fact that the United States has 21 consistently enforced the revenue statutes at issue here and the 22 inherent interest the United States has in seeing its statutes 23 upheld and enforced. 24 strong presumption that the federal defendants will adequately 25 represent the applicant’s interests. 26 F.3d 949, 957 (9th Cir. 2006) (rejecting applicant’s argument 27 that potential “budget constraints” of federal defendant 28 establishes inadequate representation, and noting that This speculation does not overcome the very 13 See Prete v. Bradbury, 438 1 “[v]irtually all governments face budget constraints generally, 2 and if such a basis were sufficient to establish inadequate 3 representation, it would eliminate the presumption of adequate 4 representation when the government and intervenor-applicant share 5 the same interest.”) 6 Finally, the applicant asserts that because the 7 California Franchise Tax Board has not yet made an appearance in 8 this action, there is no presumption that his interests as to the 9 state statute being challenged in this action will be adequately 10 represented. 11 the Complaint, which was filed before this court only one month 12 ago. 13 has not yet been served in this action. 14 cannot go around the showing required by Rule 24(a)(2) that 15 existing parties may not adequately represent their interest 16 simply by moving to intervene before the parties to the suit have 17 appeared. 18 adequately represent the potential intervenor’s interests with 19 respect to the California statutes at issue are, therefore, 20 premature. 21 22 The applicant’s motion was filed six days following According to the docket in this case, the state defendant B. Potential intervenors Any determination that the State of California may not Permissive Intervention Federal Rule of Civil Procedure 24(b)(1)(B) provides 23 that on timely motion, the court may permit anyone to intervene 24 who has a claim or defense that shares with the main action a 25 common question of law or fact. 26 exercising its discretion, the court must consider whether the 27 intervention will unduly delay or prejudice the adjudication of 28 the original parties’ rights. Fed. R. Civ. P. 24(b)(1)(B). Fed. R. Civ. P. 24(b)(3). 14 In 1 Therefore, even if an applicant meets the requirements of Rule 2 24(b)(1)(B), the court “has discretion to deny permissive 3 intervention.” 4 (9th Cir. 2002) (quoting Nw. Forest Res. Council v. Glickman, 82 5 F.3d 825, 839 (9th Cir. 1996). 6 So. Cal. Edison Co. v. Lynch, 307 F.3d 794, 803 In the Ninth Circuit, an applicant who wishes to 7 intervene to litigate a claim on the merits must show (1) 8 independent grounds for jurisdiction; (2) the motion is timely; 9 and (3) the applicant's claim or defense, and the main action, 10 have a question of law or a question of fact in common. 11 Edison, 307 F.3d at 803 (quoting United States v. City of Los 12 Angeles, 288 F.3d 391 (9th Cir. 2002)). 13 applicant’s assertions, permissive intervention “ordinarily 14 requires independent jurisdictional grounds.” 15 Inc. v. Int’l Ins. Co., 966 F.2d 470, 473 (9th Cir. 1992). 16 cases that the applicant cites, namely Portland Audobon Soc’y v. 17 Hodel, 866 F.2d 302, 308 n.1 (9th Cir. 1989), and the cases 18 quoted by the applicant therein, addressed the requirements for 19 intervention as of right and are therefore inapplicable to a 20 permissive intervention analysis. 21 permissive intervention in order to litigate this action on its 22 merits, he must show that independent grounds for jurisdiction 23 over his claims exist. 24 So. Cal. Contrary to the Beckman Indus. The Because the applicant seeks The judicial power of the federal courts is limited to 25 “Cases” and “Controversies.” U.S. Const. Art. III, § 1. Without 26 this basic requirement met, a federal court lacks subject matter 27 jurisdiction to hear a case. 28 U.S. 555, 559 (1992); see Fed. R. Civ. P. 12(b)(1). Lujan v. Defenders of Wildlife, 504 15 The doctrine 1 of standing is an “essential and unchanging part of the case-or- 2 controversy requirement of Article III.” 3 504 U.S. at 560 (citing Allen v. Wright, 468 U.S. 737, 751 4 (1984)). 5 litigant is entitled to have the court decide the merits of the 6 dispute or of particular issues.” 7 498 (1975). 8 allege “a personal injury fairly traceable to the defendant's 9 allegedly unlawful conduct and likely to be redressed by the 10 Defenders of Wildlife, “In essence the question of standing is whether the Warth v. Seldin, 422 U.S. 490, Article III standing requires that a plaintiff requested relief.” Allen v. Wright, 468 U.S. at 751. While the applicant does not concede that he lacks 11 12 standing to bring an independent suit, he admits in his motion 13 that a court would likely find no “case or controversy” existed 14 unless and until the plaintiffs in this lawsuit succeeded. 15 Intervene 9:11-15.) 16 makes no effort to show that independent grounds for jurisdiction 17 exist. 18 permissive intervention and his motion for permissive 19 intervention must be denied. 20 (Mot. Furthermore, in his Reply, the applicant Therefore, he does not meet the requirements for The applicant requested in the alternative that he and 21 Does 1-100 be granted amicus status in the pending litigation. 22 The United States does not object. Therefore, court will grant 23 the applicant’s motion for leave to file a brief as amicus 24 curiae. 25 /// 26 /// 27 /// 28 /// 16 1 2 IT IS THEREFORE ORDERED that the applicant’s motion to intervene be, and the same hereby is, DENIED. 3 IT IS FURTHER ORDERED that the applicant’s motion for 4 leave to file a brief as amicus curiae be, and the same hereby is 5 GRANTED. 6 DATED: December 1, 2009 7 8 9 10 11 12 13 14 15 16 17 18 19 20 21 22 23 24 25 26 27 28 17
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