                    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,         *
--------------------------------------------- *
                                              *
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 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

       1
      The Honorable Donovan W. Frank, United States District Judge for the District
of Minnesota.

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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, 2010, 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


      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.

                                          -3-
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).



                                          -4-
       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


                                           -5-
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


                                          -6-
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



      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.

                                          -7-
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.


      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).

                                          -8-
       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.




                                          -9-
                                       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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