                                                     United States Court of Appeals
                                                              Fifth Circuit
                IN THE UNITED STATES COURT OF APPEALS     FILED
                        FOR THE FIFTH CIRCUIT        December 27, 2005

                                                    Charles R. Fulbruge III
                             No. 04-20732                   Clerk
                        _____________________

KAY STALEY,

                                                Plaintiff - Appellee,

                               versus

HARRIS COUNTY TEXAS,

                                                Defendant - Appellee,

                               versus

STAR OF HOPE MISSION,
                                              Movant – Appellant.
_________________________________________________________________

           Appeal from the United States District Court
                for the Southern District of Texas
                       USDC No. 4:03-CV-3411
_________________________________________________________________

Before JOLLY, HIGGINBOTHAM, and SMITH, Circuit Judges.

PER CURIAM:*

     This appeal challenges the district court’s denial of Star of

Hope Mission’s motion to intervene in the underlying case brought

by Kay Staley against Harris County, Texas, which is pending

decision as No. 04-20667.     Star of Hope sought both permissive

intervention and intervention of right under Federal Rule of Civil

Procedure 24.   We affirm the district court’s denial of both bases



     *
       Pursuant to 5TH CIR. R. 47.5, the Court has determined that
this opinion should not be published and is not precedent except
under the limited circumstances set forth in 5TH CIR. R. 47.5.4.
of   intervention      essentially   for    the   reasons   provided   by   the

district court in its exceptionally good opinion.

      The underlying action was initiated on August 25, 2003 by

Staley, seeking to remove the County’s display of the King James

Bible in front of the Harris County Civil Courthouse on grounds

that the display violates the First and Fourteenth Amendments to

the United States Constitution.        Nearly a year after the complaint

was filed, the case was tried and, on August 10, 2004 the district

court entered a memorandum opinion and final judgment. Among other

relief, the court ordered the removal of the Bible.                Nine days

later Star of Hope, as the owner of the monument containing the

Bible,    moved   to   intervene.     The    district   court   denied      both

intervention of right and permissive intervention.

                                      I

      Star of Hope bases its claim for intervention of right on Rule

24(a)(2).2    To intervene successfully under Rule 24(a)(2)

      2
       Federal Rule 24(a) provides that mandatory intervention, or
intervention of right is permitted:

                  (1) when a statute of the United States
             confers an unconditional right to intervene;
             or

                (2) when the applicant claims an interest
           relating to the property or transaction which
           is the subject of the action and the applicant
           is so situated that the disposition of the
           action may as a practical matter impair or
           impede the applicant’s ability to protect that
           interest, unless the applicant’s interest is
           adequately represented by existing parties.
FED. R. CIV. P. 24(a). Because Star of Hope has not alleged any

                                      2
          (1) the application for intervention must be
          timely; (2) the applicant must have an
          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 his ability to
          protect that interest; (4) the applicant's
          interest must be inadequately represented by
          the existing parties to the suit.

Ford v. City of Huntsville, 242 F.3d 235, 239 (5th Cir. 2001).

Failure   to   meet   any   one   of   these   requirements   precludes

intervention under Rule 24(a)(2).      Edwards v. City of Houston, 78

F.3d 983, 999 (5th Cir. 1996) (en banc) (citations omitted).        We

review the district court determinations as to timeliness for abuse

of discretion, and the remaining factors de novo.     Id. at 999-1000.

The district courts are encouraged to apply the      “practical rather

than technical yardstick” in determining intervention under Rule

24(a)(2), United States v. Texas E. Transmission Corp., 923 F.2d

410, 413 (5th Cir. 1991).     We hold that here the district court

applied the correct principles and properly concluded that Star of

Hope fails to satisfy both the timeliness and representation of

interest requirements of Rule 24(a)(2).

     The timeliness requirement is measured based on four factors:

          (1) the length of time during which the
          would-be   intervenor   actually    knew   or
          reasonably should have known of its interest
          in the action before petitioning for leave to


statutory unconditional right to intervene, its claim for mandatory
intervention is limited to Rule 24(a)(2).



                                   3
          intervene, (2) the extent of the prejudice
          that the existing parties to the litigation
          may suffer as a result of the would-be
          intervenor's failure to apply for intervention
          as soon as it actually knew or reasonably
          should have known of its interest in the
          action, (3) the extent of the prejudice that
          the would-be intervenor may suffer if its
          petition for leave to intervene is denied,
          [and]   (4)    the   existence    of   unusual
          circumstances militating either for or against
          a determination that the application is
          timely.

Stallworth v. Monsanto, 558 F.2d 257, 264-66 (5th Cir. 1977).

Additionally, this Court has noted that “intervention attempts

after final judgments are ordinarily looked upon with a jaundiced

eye [as they] have a strong tendency to prejudice existing parties

to the litigation or to interfere substantially with the orderly

process of the court.”    United States v. United States Steel Corp.,

548 F.2d 1232, 1235 (5th Cir. 1977) (internal citation omitted).

     Star of Hope rests its claim largely on the first factor,

contending   that   it   could    not       have   known   that   its   “private

expression on public property . . . had been somehow converted to

government   expression    and     judicially       deemed   to   violate    the

Establishment Clause.”     Star of Hope contends that it did not know

or recognize its interest until the district judge issued its final

order on August 10, 2004.        We find this argument without merit.

     As the district court thoroughly explained, the publicity

surrounding Staley’s lawsuit could not have escaped the Mission’s

attention.   From the outset of the lawsuit, court-ordered removal

of the monument was always a possibility -- indeed it was the

                                        4
relief the Plaintiff sought.      Furthermore, two persons affiliated

with Star of Hope, one of which was its Director of Operations,

testified concerning the monument at the trial.            Clearly the

district court did not err in finding that Star of Hope knew or

should have known of its interest in the action before the entry of

final judgment. Thus its post-judgment motion for intervention was

untimely.

     As noted by the district court, Star of Hope has pointed to no

arguable justification for its failure to intervene in a timely

manner -- i.e., there has been no change in the relief sought by

the plaintiff; no alteration of the claims at issue; and no

interests made to conflict by the final judgment.           See, e.g.,

Sierra Club v. Espy, 18 F.3d 1202, 1206 (5th Cir. 1994) (permitting

intervention where the claims “changed radically over the course of

the []suit” and an injunction was applied in an unusual way).

Consequently, Star of Hope’s motion was untimely without any

acceptable   justification   or   reason.    As   the   district   court

correctly noted, “[i]f Star of Hope was genuinely concerned about

protecting its rights in this litigation, it could and should have

filed a motion for leave to intervene long ago.”3

     3
       Star of Hope Mission cites Americans United for Separation
of Church and State v. City of Grand Rapids, 922 F.2d 303 (6th Cir.
1990), in defense of its position on post-judgment intervention of
right.     However, Americans United permitted post-judgment
intervention on behalf of a religious organization where the City
chose not to appeal a preliminary injunction enjoining it from
issuing a permit to erect a holiday display. Additionally, delay
in Americans United would have rendered the claim moot once the

                                    5
     Although untimeliness alone is fatal to Star of Hope’s Rule

24(a)(2) intervention, the district court correctly noted that the

intervention fails for a second reason -- the interests of Star of

Hope are adequately represented by the current parties to the

action.   Star of Hope has failed to overcome two key presumptions

in this respect:        first, a government entity is presumed to

adequately represent the interests of one of its citizens, unless

the interest “is in fact different from that of the [government]

and . . . the interest will not be represented by it.”         See Hopwood

v. Texas, 21 F.3d 603, 605 (5th Cir. 1994).        As the district court

correctly found, the County has raised identical arguments as to

free speech and free exercise and seeks the identical result.            To

the extent Star of Hope is concerned about damage or “conversion”

of its property in the removal process, it is free to participate

in or conduct any required removal itself.

     Second, the County is presumed to adequately represent another

party with identical ultimate goals, unless the party requesting

intervention   can    show   “adversity   of   interest,    collusion,   or

nonfeasance on the part of the existing party.”            See Edwards, 78

F.3d at 1005.        If the County prevails in its claim that the

monument, including the Bible, does not violate the Constitution,

then Star of Hope will be completely satisfied with the resulting



holidays passed. However, in the case at hand the County is fully
prepared to litigate its case, and this Court is in a position to
order timely relief if warranted.

                                    6
preservation of the monument -- that is to say, the County and Star

of Hope share the ultimate goal of keeping the monument intact.

     The district court correctly determined that the interests and

goals of Star of Hope and the County are in harmony in this case.

Star of Hope’s claims of inadequate representation, arising only

after the district court ruled against the County, are without

merit.    Consequently, the district court did not err in denying

Star of Hope’s intervention under Rule 24(a)(2) as untimely, and

failing to meet the representation of interest requirements.

                                  II

     Star of Hope additionally contends the district court erred in

denying    it   permissive   intervention   under   Rule   24(b)(2).4

Permissive intervention is a matter “wholly discretionary with the

[district] court . . . even though there is a common question of

law or fact, or the requirements of Rule 24(b) are otherwise

satisfied.”     New Orleans Public Service, Inc. v. United Gas Pipe

Line Co., 732 F.2d 452, 471 (5th Cir. 1984).        Consequently, we

review a district court’s denial of permissive intervention under

a “clear abuse of discretion” standard.     Cajun Elec. Power Coop.,

Inc. v. Gulf States Utils., Inc., 940 F.2d 117, 121 (5th Cir.

1991).    For the reasons we have earlier given, the district court


     4
        Rule 24(b)(2) states that a party may be entitled to
permissive intervention where “an applicant's claim or defense and
the main action have a question of law or fact in common.” FED. R.
CIV. P. 24(b)(2).


                                  7
did   not   err   in   finding   that    Star   of   Hope’s   application   for

intervention was untimely and that the County adequately represents

Star of Hope’s interests in this case. Consequently, the court did

not abuse its discretion in denying Star of Hope’s request for

permissive intervention.

                                        III

      For these reasons the district court’s denial of Star of

Hope’s motion to intervene is

                                                                    AFFIRMED.




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