          Case: 12-15770   Date Filed: 10/03/2013   Page: 1 of 6


                                                    [DO NOT PUBLISH]



           IN THE UNITED STATES COURT OF APPEALS

                   FOR THE ELEVENTH CIRCUIT

                   ___________________________

                           No. 12-15770
                       Non-Argument Calendar
                   ___________________________

                    Docket No. 3:12-cv-00040-TCB


RICHARD P. LINDSEY,

                                                            Plaintiff-Appellee,

                                 versus

FAYETTE COUNTY BOARD OF COMMISSIONERS,
CHAIRPERSON HERB FRADY,
in his official capacity,
et al.,

                                                       Defendants-Appellees,

ALI ABDUR-RAHMAN,
ALISHA ABDUR-RAHMAN,

                                               Interested Parties - Appellants.
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                       ______________________________

                   Appeal from the United States District Court
                      for the Northern District of Georgia
                     _______________________________

                                 (October 3, 2013)



Before HULL, JORDAN, and EDMONDSON, Circuit Judges.



PER CURIAM:



       Ali and Aisha Abdur-Rahman (“Intervenors”) appeal from the district

court’s order denying their post-judgment motion to intervene as defendants in a

civil action. Appellees -- plaintiff and defendants in the underlying action -- have

filed motions to dismiss the appeal, which we have construed as motions for

summary affirmance. We grant Appellees’ motions; we affirm in part and dismiss

in part.

       In the underlying civil action, Plaintiff-Appellee Richard Lindsey sought

declaratory and injunctive relief, alleging that the Fayette County Board of

Commissioners districts were unconstitutional. Shortly after Lindsey filed his

complaint, the parties filed a joint motion seeking, among other things, the

approval of a consent decree and entry of final judgment. The district court issued

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the consent decree and terminated the case. The district court retained jurisdiction

over the case only for purposes of enforcing the consent decree.

       Several months after the case was terminated, Intervenors filed a motion to

intervene as defendants, pursuant to Fed.R.Civ.P. 24(a) and (b). The district court

issued an order staying the action pending resolution of the intervention motion.

       The district court ultimately denied Intervenors’ motion to intervene based

on two independent grounds: (1) Intervenors failed to demonstrate standing to

continue the suit after the original parties had settled, as required by Dillard v.

Chilton Cnty. Comm’n, 495 F.3d 1324, 1330 (11th Cir. 2007); and (2) “[e]ven if

Intervenors had standing,” they failed to show that their motion was timely, as

required by Fed.R.Civ.P. 24(a) and (b).1

       In their initial appellate brief, Intervenors make no argument challenging the

district court’s denial -- on the ground of untimeliness -- of their motion to

intervene. Instead, Intervenors raise the timeliness issue for the first time in their

reply brief. So, Intervenors have waived the timeliness argument. See Kernel

Records Oy v. Mosley, 694 F.3d 1294, 1310 n.17 (11th Cir. 2012).

1
  The district court later issued an order imposing sanctions against Intervenors’ lawyer under
Fed.R.Civ.P. 11. Intervenors appealed separately from that order, and that appeal is docketed as
No. 13-10895.
In this appeal, Intervenors have filed a motion to stay the district court’s sanctions order.
Because the district court’s sanctions order is not properly before us in this appeal, we lack
jurisdiction to consider the motion. See Holloman v. Mail-Well Corp., 443 F.3d 832, 844-45
(11th Cir. 2006) (dismissing an appeal from a sanctions order for lack of jurisdiction where
sanctions were imposed only on the lawyer when the lawyer failed to list himself as an appellant
in the notice of appeal).
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       Because Intervenors fail to challenge a dispositive issue, they cannot prevail

on appeal. See NAACP v. New York, 93 S.Ct. 2591, 2603 (1973) (explaining that

a court considering a motion to intervene “must first be satisfied as to timeliness”

and, if the motion to intervene “is untimely, intervention must be denied.”). No

substantial question exists for the outcome of the case; we grant Appellees’

motions for summary affirmance. 2 See Groendyke Transp., Inc. v. Davis, 406 F.2d

1158, 1162 (5th Cir. 1969) (summary disposition is necessary and proper when

“one of the parties is clearly right as a matter of law so that there can be no

substantial question as to the outcome of the case. . . .”).

       Intervenors were not parties to the lawsuit, and their motion to intervene was

denied properly. As a result, they lack standing to challenge the consent decree.

See Marino v. Ortiz, 108 S.Ct. 586, 587 (1988) (“only parties to a lawsuit, or those

that properly become parties, may appeal an adverse judgment”). To the extent

Intervenors seek to challenge the district court’s issuance of the consent decree, we

dismiss the appeal.

       AFFIRMED IN PART; DISMISSED IN PART.




2
  Because we grant Appellees’ motions for summary affirmance based on Intervenors’ failure to
appeal the timeliness-of-the-motion issue, we need not address Appellees’ alternative argument
that Intervenors failed to file a timely appellate brief.
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JORDAN, Circuit Judge, concurring:

      I agree that we must affirm the district court’s denial of the motion to

intervene because Ali and Alisha Abdur-Rahman did not contest, in their initial

brief, the district court’s ruling that their motion was untimely. And I also agree

that, as a result, we must dismiss the challenge to the underlying consent decree. I

therefore join the Court’s opinion in full.

      There are, however, troubling indications that the lawsuit filed by Richard

Lindsey against Fayette County was the product of collusion. First, several days

before the lawsuit was filed, Steve Brown – a Fayette County Commissioner –

asked the Attorney General of Georgia for an opinion as to whether the County

could “sue itself” through a “pre-arranged agreement” in which it would “pay[ ]

the expenses of a [third] party to file litigation” against the County. Second, two

Fayette County officials -- Commissioner Brown and Commissioner Robert

Horgan – testified under oath (at their depositions in a related case) that Scott

Bennett, the Fayetteville County Attorney, told them that he had asked Mr.

Lindsey to file the lawsuit against the County in order to get the February 2012

redistricting plan approved. Third, emails between Mr. Lindsey and Mr. Bennett

appear to confirm that Mr. Bennett (counsel for the would-be-defendants) drafted

the complaint for Mr. Lindsey (the would-be-plaintiff) to file against his clients,

and that both men then worked together to finalize the document before it was filed

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in court. Fourth, less than two weeks after the lawsuit was filed, Mr. Lindsey and

the County filed a joint motion for approval of a consent decree.

      Mr. Lindsey, in a letter he sent to counsel for the Abdur-Rahmans, denied

that there was any collusion.    But if it is true that the lawsuit was collusive, then

the district court lacked Article III jurisdiction to entertain it, see generally United

States v. Johnson, 319 U.S. 302, 304-05 (1943), and Mr. Lindsey and Mr. Bennett

may have improperly manufactured (without the district court’s knowledge) a case

or controversy. In my opinion, the district court should inquire further into how

this lawsuit came to be filed and settled.




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