NATIONAL ASSOCIATION FOR THE ADVANCEMENT OF COLORED PEOPLE, NEW YORK CITY REGION OF NEW YORK CONFERENCE OF BRANCHES, ET AL. v. NEW YORK ET AL.
No. 72-129
Supreme Court of the United States
Argued February 27-28, 1973—Decided June 21, 1973
413 U.S. 345
Jack Greenberg argued the cause for appellants. With him on the briefs were James M. Nabrit III, Eric Schnapper, Nathaniel R. Jones, and Wiley Branton.
A. Raymond Randolph, Jr., argued the cause for the United States. With him on the brief were Solicitor General Griswold and Assistant Attorney General Norman. George D. Zuckerman, Assistant Attorney General of New York, argued the cause for appellee the State of New York. With him on the brief were Louis J. Lefkowitz, Attorney General, Samuel A. Hirshowitz, First Assistant Attorney General, John G. Proudfit, Assistant Attorney General, and Judith T. Kramer, Deputy Assistant Attorney General.
MR. JUSTICE BLACKMUN delivered the opinion of the Court.
This appeal from a three-judge district court for the District of Columbia comes to us pursuant to the direct-review provisions of § 4 (a) of the Voting Rights Act of 1965, Pub. L. 89-110, 79 Stat. 438, as amended,
the State of New York, on behalf of its counties of New York, Bronx, and Kings. New York‘s action was one for a judgment declaring that, during the 10 years preceding the filing of the suit, voter qualifications prescribed by the State had not been used by the three named counties “for the purpose or with the effect of denying or abridging the right to vote on account of race or color,” within the language and meaning of § 4 (a), and that the provisions of §§ 4 and 5 of the Act, as amended,
In addition to denying the appellants’ motion to intervene, the District Court, by the same order, granted New York‘s motion for summary judgment. This was based upon a formal consent by the Assistant Attorney General in charge of the Civil Rights Division, on behalf of the United States, consistent with the Government‘s answer theretofore filed, “to the entry of a declaratory judgment under Section 4 (a) of the Voting Rights Act of 1965 (
Appellants contend here that their motion to intervene should have been granted because (1) the United
Faced with the initial question whether this Court has jurisdiction, on direct appeal, to review the denial of the appellants’ motion to intervene, we postponed determination of that issue to the hearing of the case on the merits. 409 U. S. 978.
I
Section 2 of the Voting Rights Act of 1965,
“any requirement that a person as a prerequisite for voting or registration for voting (1) demonstrate the ability to read, write, understand, or interpret any matter, (2) demonstrate any educational
achievement or his knowledge of any particular subject, (3) possess good moral character, or (4) prove his qualifications by the voucher of registered voters or members of any other class.”
42 U. S. C. § 1973b (c) .
Section 4 (b), as amended, now applies in any State or in any politicаl subdivision of a State which the Attorney General determines maintained on November 1, 1964, or November 1, 1968, any “test or device,” and with respect to which the Director of the Bureau of the Census determines that less than half the residents of voting age there were registered on the specified date, or that less than half of such persons voted in the presidential election of that November. These determinations are effective upon publication in the Federal Register and are not reviewable in any court.
The prescribed publication in the Federal Register suspends the effectiveness of the test or device, and it may not then be utilized unless a three-judge district court for the District of Columbia determines, by declaratory judgment, that no such test or device has been used during the 10 years preceding the filing of the action “for the purpose or with the effect of denying or abridging the right to vote on account of race or color.” § 4 (a),
Section 5,
II
On July 31, 1970, the Attorney General filed with the Federal Register his determination that New York on November 1, 1968, maintained a test or device as defined in § 4 (c) of the Act. This was published the following day. 35 Fed. Reg. 12354. On March 27, 1971, there was published in the Federal Register the determination
The present action was instituted by the State of New York with the filing of its original complaint on December 3, 1971, in the United States District Court for the District of Columbia. The appellants contend that the District Court‘s order denying them intervention in that action is directly appealable to this Court under § 4 (a) of the Act.
The United States “substantially” agrees that this Court has jurisdiction to review on direct appeal the denial of intervention in an action of this kind.6 Brief for United States 21 n. 15. New York suggests that the appeal should be dismissed because the appellants have not established intervention as of right and have not demonstrated an abuse of discretion by the District Court in denying permissive intervention. Brief for Appellee 22-23. We must determine for ourselves, of course, the scope of our jurisdiction, since “jurisdiction of the federal courts—their power to adjudicate—is a grant of authority to them by Congress and thus beyond the scope of litigants to confer.” Neirbo Co. v. Bethlehem Corp., 308 U. S. 165, 167 (1939); Mitchell v. Maurer, 293 U. S. 237, 244 (1934).
The jurisdictional issue is simply phrased: whether “any appeal,” within the language of the second paragraph of § 4 (a), includes an appeal by a would-be, but unsuccessful, intervenor. Certainly, the words “any appeal” are subject to broad construction; they could be said to include review of any meaningful judicial determi-
Despite this existing statutory provision designed to hasten the removal of barriers to the right to vote, the Congress determined, in 1965, that the enforcement of the voting rights statutes “has encountered serious obstacles in various regions of the country,” and progress “has been painfully slow, in part because of the intransigence of State and local officials and repeated delays in the judicial process.” H. R. Rep. No. 439, supra, at 9. See South Carolina v. Katzenbach, 383 U. S., at 309-315, and Allen v. State Board of Elections, 393 U. S. 544, 556 n. 21 (1969). Congress thus produced
This conclusion is not without other relevant statutory precedent. It has long been settled that an unsuccessful intervenor in a government-initiated civil antitrust action may appeal directly to this Court under § 2 of the Expediting Act,
Earlier this Term, in Tidewater Oil Co. v. United States, 409 U. S. 151 (1972), we held that § 2 of the Expediting Act lodged in this Court exclusive appellate jurisdiction over interlocutory, as well as final, orders in Government civil antitrust cases. In so holding, we emphasized Congress’ determination “to speed appellate review.” Id., at 155. As we have noted аbove, Congress has expressed a similar need for speed in adjudicating voting rights cases. We could not justify dissimilar treatment to an unsuccessful intervenor under the parallel § 4 (a) of the Civil Rights Act.
We conclude, therefore, that this Court has jurisdiction, on direct appeal by one denied intervention in a § 4 (a) action, to determine whеther the District Court erred in denying the motion to intervene.
III
As originally enacted, §§ 4 and 5 of the Voting Rights Act of 1965 related only to a period of five preceding years, to a test or device in effect on November 1, 1964, to a paucity of persons registered on that date, and to a paucity of voters in the presidential election of 1964. 79 Stat. 438, 439. In 1970, however, Congress enacted the Voting Rights Act Amendments of 1970. Pub. L. 91-285, 84 Stat. 314. This new legislation, among other things, related §§ 4 and 5 to ten, rather than five, preceding years and, in addition to the November 1, 1964, date and the presidential election of that year, to No-
The three New York counties that the present litigation concerns were not covered by §§ 4 and 5 of the original 1965 Act. They became subject thereto because of the provisions of the 1970 Act and the respective published determinations, hereinabove described, of the Attorney General and the Director of the Bureau of the Census. Indeed, it is clear that the three counties were a definite target of the 1970 amendments. See, e. g., 116 Cong. Rec. 6659 (1970) (remarks of Sen. Cooper), id., at 20161 and 20165 (remarks of Congs. Celler and Albert, respectively).
It was in December 1971, during the pendency of state legislative proceedings for the redrafting of congressional and state senate and assembly district lines,9 that the State of New York filed its complaint in the present
New York and the United States stipulated that the Government could file its answer or other pleading by March 10, 1972. The answer was filed on that day. The Government therein admitted that English-Spanish affidavits were provided by the City Board of Elections but averred, on information and belief, that such affidavits
On March 17 New York filed its motion for summary judgment. This was supported by affidavits from the Administrator for the Board of Elections in the City of New York “which includes the counties of New York, Bronx and Kings,” the Chief of the Bureau of Elementary and Secondary Educational Testing of the New York State Education Department, and the respective Chief Clerks of the New York, Bronx, and Brooklyn Borough Offices of the New York City Board of Elections. App. 15a-32a. These affidavits stated that those instances where the suspension of literary tests had been ignored or overlooked by election officials were isolated and that steps had been taken to resolve that problem. The affidavits also stated that since 1964, with the exception of 1967, the Board of Elections had conducted summer voter-registration drives directed particularly to high-density black population areas. In its memorandum, filed with the District Court, in support of its motion, New York presented a history of its use of literacy tests11 and concluded, “[s]ince it wаs never the practice of administering the tests to discriminate against any person on account
Two and one-half weeks later, on April 3, the United States filed its formal consent, hereinabove described, to the entry of the declaratory judgment for which New York had moved. The accompanying affidavit of the Assistant Attorney General stated that the Department of Justice had conducted “an investigation which consisted of examination of registration records in selected precincts in each covered county, interviews of certain election and registration officials and interviews of persons familiar with registration activity in black and Puerto Rican neighborhoods in those counties.” App. 40a. The Assistant Attorney General then reached the conclusion, App. 42a-43a, quoted supra, at 349.
Aрpellants’ motion to intervene was filed April 7. Appellants asserted that if New York were successful in the present action, the appellants would be deprived of the protections afforded by §§ 4 and 5; that they “would be legally bound” thereby in their simultaneously filed § 5 action in the Southern District of New York; and that the latter action “would necessarily fail.” App. 45a.12
There was also filed an affidavit of Eric Schnapper, one of the attorneys for the appellants. This repeated the allegations contained in the motion to intervene and also asserted that on March 21 the affiant advised a Department of Justice attorney that when the New York redistricting laws were submitted to the Department, he wished to submit material and arguments in opposition to their approval; that on March 23 he was advised by another Department attorney that papers were being
the New York Legislature enacted legislation redefining the boundaries of the State‘s congressional districts. N. Y. Laws 1972, c. 76. The congressional changes were not submitted for approval under § 5.
With the motion to intervene the appellants filed a proposed answer to appellees’ amended complaint and a brief memorandum of points and authorities. The latter suggested the failure of the Attorney General “to investigate the relevant facts,” namely, “whether there are differences in the literacy rates of whites and non-whites, particularly if they are do [sic] to unequal or discriminatory public education. Gaston County v. United States, 395 U. S. 285 (1969).” This suggestion was also made in the proposed answer. App. 65a-66a.
The United States took no position with respect to the appellants’ motion to intervene. New York opposed the motion on six grounds. The first was untimeliness in that the suit had been pending for more than four months, an article about it had appeared in early February in the New York Times, and the appellants did not deny that they had knowledge of the pendency of the action. The second was failure to allege appropriate supporting facts. The third was the lack of a requisite interest in that none of the appellants asserted he was a victim of discriminatory application of the literacy test; rather, the motion to intervene was subordinate to the appellants’ real interest in invalidating New York‘s reapportionment of its assembly, senate, and congressional districts, as evidenced by the institution of their action in the Southern District of New York. The fourth
On April 13 the three-judge court entered its order denying the appellants’ motion to intervene and granting summary judgment for New York. App. 71a-72a.
On April 24 the appellants filed a motion to alter judgment on the ground, among others, that their motion to intervene was timely since neither the appellants nor their counsel knew of the § 4 (a) action until March 21.14 The appellants now asserted that evidence was available to demonstrate that in the three counties education af-
The District Court promptly denied the Motion to Alter Judgment. App. 117a.
Subsequently, while the appeal was pending in this Court, two additional facts came to light and are authorized by the parties for our consideration. The first is that Mr. Schnapper, who executed the above-described affidavits, did not begin his employment as an attorney with the NAACP Legal Defense and Education Fund, Inc., until March 9, 1972. The second is that “Justice Department attorneys met with appellants Stewart and Fortune in January 1972 during the course of their investigation; although the Justice Department attorneys recall informing Stewart and Fortune that this case was pending, neither Stewart nor Fortune can remember being so informed.” Reply Brief for Appellants 3 n. 1; Brief for United States 36.
IV
The foregoing detailed recital of the facts and of the history of the case is necessary because of the discretionary nature of the District Court‘s order we are called upon to review. Our task is to determine whether, upon
Intervention in a federal court suit is governed by
the suit has progressed is one factor in the determination of timeliness, it is not solely dispositive. Timeliness is tо be determined from all the circumstances.17 And it 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.18
With these accepted principles in mind, we readily conclude that the District Court‘s denial of the appellants’ motion to intervene was proper because of the motion‘s untimeliness, and that the denial was not an abuse of the court‘s discretion:
1. The court could reasonably have concluded that appellants knew or should have known of the pendency of the § 4 (a) action because of an informative February article in the New York Times discussing the controversial aspect of the suit;19 public comment by community leaders; the size and astuteness of the membership and staff of the organizational appellant; and the ques-
2. We, however, need not confine our evaluation of abuse of discretion to the facts just mentioned, for the record amply demonstrates that appellants failed to protect their interest in a timely fashion after March 21, 1972, the date they allegedly were first informed of the pendency of the action. At that point, the suit was over three months old and had reached a critical stage. The United States had answered New York‘s complaint on March 10 and in that answer had clearly indicated that it was without knowledge or information sufficient to form a belief as to the truth of New York‘s allegation that the State‘s literacy tests were administered without regard to race or color. App. 13a. New York, in reliance upon this answer, then filed its motion for summary judgment. The only step remaining was for the United States either to oppose or to consent to the entry of summary judgment. This was the status of the suit at the time the appellants concede they were aware of its existence. It was obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answеr revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was incumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.20 Appel-
3. It is also apparent that there were no unusual circumstances warranting intervention since (a) no appellant alleged an injury, personal to him, resulting from the discriminatory use of a literacy test, (b) appellants’ claim of inadequate representation by the United States was unsubstantiated, (c) appellants would not be foreclosed from challenging congressional and state legislative redistricting plans on the grounds that they were the product of improper racial gerrymandering, cf. Gomillion v. Lightfoot, 364 U. S. 339 (1960), and Wright v. Rockefeller, 376 U. S. 52 (1964), (d) appellants were free to renew their motion to intervene following the entry of summary judgment since the District Court was required, under § 4 (a) of the Act,
4. Finally, in view оf the then rapidly approaching primary elections in New York and of the final date for filing nominating petitions to participate in those elections, the granting of a motion to intervene possessed the potential for seriously disrupting the State‘s electoral process with the result that primary and general elections would then have been based on population figures from the 1960 census and more than 10 years old.
We therefore conclude that the motion to intervene was untimely and that the District Court did not abuse its discretion in denying the appellants’ motion. See Apache County v. United States, 256 F. Supp. 903 (DC 1966); United States v. Paramount Pictures, Inc., 333 F. Supp. 1100 (SDNY), aff‘d sub nom. Syufy Enterprises v. United States, 404 U. S. 802 (1971). This makes it unnecessary for us to consider whether other conditions for intervention under Rule 24 were satisfied.
Affirmed.
MR. JUSTICE MARSHALL took no part in the consideration or decision of this case.
MR. JUSTICE DOUGLAS, dissenting.
When two mighty political agencies such as the Department of Justice in Washington, D. C., and the Attorney General of New York in Albany agree that there is no racial discrimination in voting in three New York counties although the historic record1 suggests it, it
The Voting Rights Act Amendments of 1970 were specifically aimed at New York-particularly Bronx, Kings, and New York Counties. It was pointed out in the debates that under the earlier Act these counties were not included, that while in the 1964 election more than 50% of the voters were registered and more than 50% voted, in the 1968 election 50% were not registered or voting. 116 Cong. Rec. 6654, 6659. It was pointed out that New York‘s literacy requirement was enacted with the view of discriminating on the basis of race. Id., at 6660. New York blacks were illiterate because their education, if any, had been in second-class schools elsewhere. Id., at 6661. It was emphasized that wherever the blacks had been educated it was unconstitutional to discriminate against them on the basis of race even though illiterate. Id., at 5533. The use of literacy tests in New York tended to deter blacks from registering, it was said. Ibid. And it was pointed out that literacy tests had a greater impact on blacks and other minorities than on any white because literacy was higher among whites. Id., at 5532-5549.
In the face of this history, the United States did not call one witness or submit a single document or make even a feeble protest to New York‘s claim that it was lily-white. The United States has no defense to offer. The desultory way in which the United States acted is illustrated by the fact that although the Act requires
The Attorney General had testified before Congress:2
“[I]t is clear that Negro voting in most Deep South Counties subjected to both literacy test suspension and on-scene enrollment by Federal registrars is now higher than Negro vote participation in the ghettos of the two Northern cities-New York and Los Angeles-where literаcy tests are still in use. In non-literacy test Northern jurisdictions like Chicago, Cleveland and Philadelphia, Negro registration and voting ratios are higher than in Los Angeles and (especially) New York. . . .”
Yet, none of these assertions were given the District Court nor was any attempt made to develop evidence along these lines.
This suit by the State of New York to get an exemption for the three counties started on December 3, 1971. On March 10, 1972, the United States filed its answer and on March 17, 1972, New York moved for summary judgment. On March 21, 1972, NAACP was advised by the Department of Justice that the latter would oppose New York‘s motion for summary judgment. Out of the blue the Department of Justice on April 4, 1972, consented to the entry of a decree exempting the three New
The answer filed by NAACP on April 7, 1972, alleges that the literacy test administered by New York deterred minorities from registering, that it was administered by whites, that social gerrymandering was so widespread and successful that minorities were discouraged from vоting, and that New York produced illiterate blacks through operating inferior black schools-inferior in educational facilities, inferior in teachers, and inferior in expenditures per capita.
It is assumed, of course, that the United States adequately represents the public interest in cases of this sort. But on the face of this record of transactions that the United States has approved or does not contest, it is clear that it does not adequately represent the public interest. Intervention as of right under
Here it is plainly evident that the United States is an eager and willing partner with its allies in New York to foreclose inquiry into barriers to minority voting. What the facts may produce, no one knows. All that is requested is a hearing on the merits. The fresh air of publicity that only a fair and full trial in court can produce should be allowed to ventilate a case that has all the earmarks of a cozy arrangement to suppress the facts-evidence which, if proved, would be adequate as а basis for relief in a case from the South. See Gaston County v. United States, 395 U. S. 285 (1969). This evidence, if proved, should be equally adequate in the North.
MR. JUSTICE BRENNAN, dissenting.
In my view, the District Court erred in denying appellants’ motion for leave to intervene in this suit under § 4 (a) of the Voting Rights Act of 1965, as amended,
At the same time that the District Court denied the motion to intervene, it granted the State‘s motion for summary judgment, thereby exempting these three counties from the coverage of the Act. The United States, defendant in the suit, consented to the entry of summary judgment. As a result, the contention that appellants were prepared to urge-namely, that the grаnt of an exemption would nullify the specific congressional intent to extend the protections of the Act to the class represented by appellants-was never laid before the Court.
In upholding the denial of leave to intervene, the Court reasons that appellants’ motion, filed four days after the United States consented to a grant of summary judgment, was untimely. In the Court‘s view, appellants should have made their motion during the brief period between the filing of New York‘s motion for summary judgment and the announcement by the United States that it would not contest that motion. The Court states, with the benefit of hindsight, that it was
“obvious that there was a strong likelihood that the United States would consent to the entry of judgment since its answer revealed that it was without information with which it could oppose the motion for summary judgment. Thus, it was in-
cumbent upon the appellants, at that stage of the proceedings, to take immediate affirmative steps to protect their interests either by supplying the Department of Justice with any information they possessed concerning the employment of literacy tests in a way designed to deny New York citizens of the right to vote on account of race or color, or by presenting that information to the District Court itself by way of an immediate motion to intervene.” Ante, at 367.
The timeliness of a motion to intervene is determined, not by reference to the date on which the suit began or the date on which the would-be intervenors learned that it was pending, but rather by reference to the date when the movants learned that intervention was needed to protect their interests. See Diaz v. Southern Drilling Corp., 427 F. 2d 1118, 1125 (CA5 1970); cf. Cascade Natural Gas Corp. v. El Paso Natural Gas Co., 386 U. S. 129 (1967). Prior to the announcement that the United States would not contest the motion for summary judgment, appellants could not have known that intervention was needed to protect their interests and the interests of the class they represent. In an affidavit filed in connection with the motion to intervene, appellants’ attorney stated that he had been advised by three different Justice Department attorneys that the United States would oppose New York‘s motion for summary judgment. App. 48a-51a. The Court suggests that the contents of the representations made by these attorneys is “a matter of dispute.” Ante, at 368. The matter was not in dispute, however, at the time the affidavit was filed,* nor did it become the subject of dispute until five months later
Thus, the record before the District Court indicated reasonable reliance on the Government‘s assurances that the suit would not be settled. And appellants did move to intervene within four days of learning that they could no longer rely on the Government to protect their interests. On that record, the District Court was obligated to conclude that the motion was timely filed. Since the allegation of untimeliness was, in my view, the only nonfrivolous objection to the motion, the District Court‘s denial of the motion was unquestionably erroneous. I dissent.
Notes
“An action pursuant to this subsection shall be heard and determined by a court of three judges in accordance with the provisions of section 2284 of Title 28 and any appeal shall lie to the Supreme Court. The court shall retain jurisdiction of any action pursuant to this subsection for five years after judgment and shall reopen the action upon motion of the Attorney General alleging that a test or device has been used for the purpose or with the effect of denying or abridging the right to vote on account of race or color.
“If the Attorney General determines that he has no reason to believe that any such test or device has been used during the ten years preceding the filing of the action for the purpose or with the effect of denying or abridging the right to vote on account of race or color, he shall consent to the entry of such judgment.”
The Attorney General of New York protests this statement. But the 90-year-long segregated school system of last century is not the point; the reference is to the offer of proof made by the appellants. The Attorney General also states that the federal investigation showed that the inference has no basis in fact. He asserts moreover that New York‘s literacy requirement has no racial cast in practice. But appellants’ offer of proof is disturbing to say the least. The case was disposed of on a motion for summary judgment. The case is in my view a classic example of the inappropriateness of such a procedure. As I state in my dissent, a hearing should have been held and findings of fact made.
Hearings on H. R. 4249, etc., before Subcommittee No. 5 of the House Committee on the Judiciary, 91st Cong., 1st Sess., ser. 3, p. 296 (1969).
“Rule 24.-INTERVENTION
“(a) Intervention of right.
“Upon timely application anyone shall be permitted to intervene in an action: (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 he is so situated that the disposition of the action may as a practical matter impair or impede his ability to protect that interest, unless the applicant‘s interest is adequately represented by existing parties.
“(b) Permissive intervention.
“Upon timely application anyone may be permitted to intervene in an action: (1) when a statute of the United States confers a conditional right to intervene; or (2) when an applicant‘s claim or defense and the main action have a question of law or fact in common. When a party to an action relies for ground of claim or defense upon any statute or executive order administered by a federal or state governmental officer or agency or upon any regulation, order, requirement, or agreement issued or made pursuant to the statute or executive order, the officer or agency upon timely application may be permitted to intervene in the action. In exercising its discretion the court shall consider whether the intervention will unduly delay or prejudice the adjudication of the rights of the original parties.”
Iowa State University Research Foundation v. Honeywell, Inc., 459 F. 2d 447, 449 (CA8 1972); Smith Petroleum Service, Inc. v. Monsanto Chemical Co., 420 F. 2d 1103, 1115 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F. 2d 2, 5 (CA10), cert. denied, 394 U. S. 965 (1969); Kozak v. Wells, 278 F. 2d 104, 108-109 (CA8 1960); 7A C. Wright & A. Miller, Federal Practice and Pro-
McDonald v. E. J. Lavino Co., 430 F. 2d 1065, 1071 (CA5 1970); Lumbermens Mutual Casualty Co. v. Rhodes, 403 F. 2d, at 5; 3B J. Moore, Federal Practice ¶ 24.13, p. 24-524.
The New York Times, Feb. 6, 1972, p. 48. This was the only news article on the page. Its three-column headline read, “Lefkowitz Acts to Bar Voting Watch.” The article recited that New York‘s Attorney General “had moved in Federal Court in Washington to have the state exempted from potential Federal supervision over registration and voting” in the three counties. It mentioned an attack upon the suit by the Chairman of the Citizens Voter Education Committee, a Congressman, and the Manhattan and Bronx Borough Presidents, and described the Attorney General‘s reply to that attack.
See Hearings on H. R. 6400 before Subcommittee No. 5 of the House Committee on the Judiciary, 89th Cong., 1st Sess., ser. 2, pp. 91-93. Appellants at oral argument acknowledged that they were not precluded from seеking intervention prior to the date on which the United States filed its consent to the entry of summary judgment. Tr. of Oral Arg. 18-19.
“The United States filed no response to appellants’ motion to intervene and did not otherwise object to the motion.” Brief for United States 10.