Whether a movant who seeks to intervene as of right on the same side as a governmental litigant must overcome a presumption of adequate representation

QUESTION PRESENTED Under Federal Rule of Civil Procedure 24(a)(2), an entity that seeks to intervene as of right must establish that none of the existing parties “adequately represent” its interests. In cases in which someone seeks to intervene on the side of a governmental entity, the First Circuit and several other courts of appeals apply a presumption that the government will adequately represent the proposed intervenor. The presumption can only be overcome by “a strong affirmative showing” that the government “is not fairly representing the applicants’ interests.” Pet. App. 8a. In contrast, four Circuits do not apply a presumption in such cases. See, e.g., Crossroads Grassroots Pol’y Strategies v. FEC, 788 F.3d 312, 321 (D.C. Cir. 2015). Relying heavily on the presumption in the proceedings below, the First Circuit ruled that Petitioners could not intervene as of right to advance constitutional arguments in support of an important Department of Education rule on Title IX that none of the existing parties are willing to make. The question presented is whether a movant who seeks to intervene as of right on the same side as a governmental litigant must overcome a presumption of adequate representation.