Ninth Circuit Order Denying States' Intervention — East Bay Sanctuary v. Trump

Record facts

N.D. Cal. · No. 4:18-cv-06810-JST · Doc. 200 · 2024-05-22 · Docket on CourtListener

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EAST BAY SANCTUARY 
COVENANT; CENTRAL 
AMERICAN RESOURCE CENTER; 
TAHIRIH JUSTICE CENTER; 
NATIONAL CENTER FOR 
LESBIAN RIGHTS; IMMIGRANT 
DEFENDERS LAW CENTER; 
AMERICAN GATEWAYS,   
Plaintiffs-Appellees, 
  v. 
JOSEPH R. BIDEN, President of the 
United States; MERRICK B. 
GARLAND, Attorney General; 
UNITED STATES DEPARTMENT 
OF JUSTICE; DAVID NEAL; 
EXECUTIVE OFFICE FOR 
IMMIGRATION REVIEW; 
ALEJANDRO N. MAYORKAS; U.S. 
DEPARTMENT OF HOMELAND 
SECURITY; UR M. JADDOU; 
UNITED STATES CITIZENSHIP 
AND IMMIGRATION SERVICES; 
TROY A. MILLER; UNITED 
STATES CUSTOMS AND BORDER 
No. 23-16032 
D.C. No. 4:18-cv-
06810-JST
ORDER 
FOR PUBLICATION 
UNITED STATES COURT OF APPEALS 
FOR THE NINTH CIRCUIT 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
PROTECTION,  
Defendants-Appellants. 
Filed May 22, 2024 
Before:  William A. Fletcher, Richard A. Paez, and 
Lawrence VanDyke, Circuit Judges. 
Order; 
Dissent by Judge VanDyke 
SUMMARY* 
Immigration/Intervention 
In a case in which the government appeals the district 
court’s order vacating the government’s rule, Circumvention 
of Lawful Pathways (“the Rule”), the panel issued an order 
denying a motion to intervene filed by the States of 
Alabama, Kansas, Georgia, Louisiana, and West Virginia 
(“the States”).     
Noting that the appeal is currently in abeyance for 
settlement discussions, the majority explained that the States 
sought to intervene to participate in settlement negotiations 
and possibly to object to any proposed settlement and to 
request that the court stay its order.  The panel observed that 
* This summary constitutes no part of the opinion of the court.  It has
been prepared by court staff for the convenience of the reader.
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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it was unaware of any instance where a court permitted 
intervention at the appellate stage while the case was held in 
abeyance for settlement negotiations.  
Because no statute or rule governs intervention on 
appeal, the policies underlying Federal Rule of Civil 
Procedure 24 guided the majority’s analysis.  To intervene 
as of right under Rule 24(a)(2), the States must show that: 
(1) their motion is timely; (2) they have a significantly
protectable interest relating to the property or transaction
which is the subject of the action; (3) the disposition of the
action may as a practical matter impair or impede their
ability to protect that interest; and (4) their interest is
inadequately represented by the parties to the action.
The majority concluded that the States had not shown 
that they have a “significant protectible interest” in either: 
1) maintaining the Rule or in reducing immigration into the
United States; or 2) minimizing their expenditures and
preserving 
their 
population-based 
political
representation.  Because that failure alone was a sufficient
ground to deny intervention as of right, the majority did not
reach the remaining factors.
For similar reasons, the majority declined to exercise its 
discretion to allow the States to intervene permissively, 
explaining that the nature and extent of the States’ interest in 
this appeal are far too attenuated to support intervention.   
Dissenting, Judge VanDyke would grant the States’ 
motion to intervene as of right.  Judge VanDyke explained 
that this court has continually acknowledged that it should 
construe Rule 24(a)’s requirements of intervention as of 
right liberally and broadly in favor of proposed 
intervenors.   Under this lenient standard, Judge VanDyke 
concluded that: (1) the States’ motion was timely because 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
they acted swiftly after the court granted the parties’ 
unexpected motion to stay; (2) the States’  interests would 
clearly be harmed by a settlement that negates the effect of 
the Rule because they would be forced to bear the additional 
costs of illegal immigration into their territories; and (3) the 
federal government’s openness to settlement discussion after 
months of aggressively defending the Rule evinces a change 
in position such that it no longer adequately represents the 
States’ interests.  
COUNSEL 
Brian M. Boynton (argued), Principal Deputy Assistant 
Attorney General; Daniel J. Tenny, Sean R. Janda, and Brian 
J. Springer, Appellate Staff Attorneys; Antitrust Division,
United States Department of Justice, Washington, D.C.;
Christina P. Greer and Patrick J. Glen, Senior Litigation
Counsel; Erez Reuveni, Assistant Director; William C.
Peachey, Director; Office of Immigration Litigation, Civil
Division, United States Department of Justice, Washington,
D.C.; for Defendants-Appellants.
Spencer E. Wittmann Amdur (argued), Katrina L. Eiland, 
Morgan Russell, Oscar S. Roman, and Cody Wofsy, 
American Civil Liberties Union Foundation Immigrants’ 
Rights Project, San Francisco, California; Lee P. Gelernt, 
Omar C. Jadwat, Wafa Junaid, and Judy Rabinovitz, 
American Civil Liberties Union Foundation Immigrants’ 
Rights Project, New York, New York; Melissa E. Crow, 
Center for Gender & Refugee Studies, Washington, D.C.; 
Anne E. Peterson, Blaine Bookey, Julie B. Bourdoiseau, and 
Karen Musalo, Center for Gender & Refugee Studies, San 
Francisco, California; Robert Pauw, CGRS Cooperating 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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Attorney, Gibbs Houston Pauw, Seattle, Washington; Keren 
H. Zwick, Richard Caldarone, Colleen Cowgill, and Mary
Georgevich, National Immigrant Justice Center, Chicago,
Illinois; Michelle Y. Cho, American Civil Liberties Union
Foundation of Northern California, Inc., San Francisco,
California; Angelo Guisado, Center for Constitutional
Rights, New York, New York; for Plaintiffs-Appellees.
Matt A. Crapo and Christopher J. Hajec, Immigration 
Reform Law Institute, Washington, D.C., for Amicus Curiae 
Immigration Reform Law Institute. 
Katherine L. Evans and Charles S. Ellison, Duke University 
School of Law Immigrant Rights Clinic, Durham, North 
Carolina, for Amici Curiae Professors of Immigration Law. 
Ashley B. Vinson, Akin Gump Strauss Hauer & Feld LLP, 
San Francisco, California, for Amici Curiae Former 
Immigration Judges & Former Members of the Board of 
Immigration Appeals. 
Alice Farmer, Office of the United Nations High 
Commissioner for Refugees, Washington, D.C.; Robert R. 
Anderson, Arnold & Porter Kaye Scholer LLP, Denver, 
Colorado; Samuel M. Witten and Kaitlin Konkel, Arnold & 
Porter Kaye Scholer LLP, Washington, D.C.; for Amicus 
Curiae Office of the United Nations High Commissioner for 
Refugees. 
Kathleen R. Hartnett and Zoë Helstrom, Cooley LLP, San 
Francisco, California, for Amicus Curiae National 
Citizenship and Immigration Services Council 119. 
Cameron C. Russell and Rebecca Berman, Freshfields 
Bruckhaus Deringer US LLP, New York, New York; Justina 
Sessions and J. Mia Tsui, Freshfields Bruckhaus Deringer 
US LLP, Redwood City, California; Seve Kale, Freshfields 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
Bruckhaus Deringer US LLP, Washington, D.C.; for Amici 
Curiae Asylum Access México A.C. and Instituto para las 
Mujeres en la Migración A.C. 
Anwen Hughes, Christina Asencio, Rebecca Gendelman, 
and Licha M. Nyiendo, Human Rights First, New York, New 
York; Farida Chehata, Human Rights First, Los Angeles, 
California; for Amici Curiae Human Rights and Legal 
Services Organizations. 
Matt A. Crapo and Christopher J. Hajec, Immigration 
Reform Law Institute, Washington, D.C., for Amicus Curiae 
Immigration Reform Law Institute. 
Neville S. Hedley, Hamilton Lincoln Law Institute, 
Washington, D.C., for Amicus Curiae Hamilton Lincoln 
Law Institute. 
Bridget K. O’Hickey, Assistant Solicitor General; James H. 
Percival, Chief of Staff; Henry C. Whitaker, Solicitor 
General, Antitrust Section; Ashley Moody, Attorney 
General of Florida; Office of the Attorney General, 
Tallahassee, Florida; for Amici Curiae States of Florida, 
Arkansas, Indiana, Iowa, Kentucky, Mississippi, Missouri, 
Montana, Nebraska, New Hampshire, North Dakota, Ohio, 
South Carolina, South Dakota, Texas, Utah, and Virginia. 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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ORDER 
The States of Alabama, Kansas, Georgia, Louisiana, and 
West Virginia (“the States”) seek to intervene in this appeal. 
Dkt. No. 86.  For the reasons explained below, we deny the 
motion. 
This appeal is currently held in abeyance.  In July 2023, 
after the parties filed cross-motions for summary judgment, 
the district court granted summary judgment in Plaintiffs’ 
favor and vacated the challenged rule (the “Rule”).  See E. 
Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025, 
1053 (N.D. Cal. 2023); Circumvention of Lawful Pathways, 
88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. 
§§ 208.33, 1208.33).  The government sought a stay pending
appeal, which we granted.  E. Bay Sanctuary Covenant v.
Biden, No. 21., slip op. at 1 (9th Cir. Aug. 3, 2023).  We
heard oral argument in November 2023.  Dkt. No. 82.  In
February 2024, the parties jointly requested that we hold the
appeal in abeyance while they explored settlement.  Dkt. No.
83. We granted the motion.  E. Bay Sanctuary Covenant v.
Biden, 93 F.4th 1130, 1131 (9th Cir. 2024).  As of May 2024,
the parties remain engaged in settlement discussions.  Dkt.
No. 111.
The States now seek to intervene in order to participate 
in settlement negotiations and possibly to object to any 
proposed settlement and to request that we vacate our stay 
order.  In their motion, the States claim an interest in 
preserving the Rule in order to reduce unlawful immigration, 
thereby minimizing state expenditures and preserving their 
population-based political representation.  The States 
contend that they did not seek to intervene earlier because 
they previously believed that their interests would be 
represented by the government.  Only after they learned of 
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the stay and settlement negotiations did they seek to 
intervene.   
“Intervention at the appellate stage is, of course, unusual 
and should ordinarily be allowed only for ‘imperative 
reasons.’”  Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997) 
(quoting Landreth Timber Co. v. Landreth, 731 F.2d 1348, 
1353 (9th Cir. 1984), rev’d on other grounds, 471 U.S. 681 
(1985)).1  This Court disfavors putative intervenors who 
merely seek to “attack or thwart” a remedy.  United States v. 
Alisal Water Corp., 370 F.3d 915, 922 (9th Cir. 2004).  We 
are unaware of any instance where a court has permitted 
1 Other circuits similarly distinguish between intervention at the district 
court and intervention on appeal.  See Richardson v. Flores, 979 F.3d 
1102, 1105 (5th Cir. 2020) (noting there is a “steep threshold for 
allowing intervention on appeal”); Pub. Serv. Co. of N. M. v. Barboan, 
857 F.3d 1101, 1113 (10th Cir. 2017) (“Though we usually take a liberal 
view of Rule 24(a), when an applicant has not sought intervention in the 
district court, we permit it on appeal ‘only in an exceptional case for 
imperative reasons.’” (quoting Elliott Indus. Ltd. P’ship v. BP Am. Prod. 
Co., 407 F.3d 1091, 1103 (10th Cir. 2005))); Hall v. Holder, 117 F.3d 
1222, 1231 (11th Cir. 1997) (“A court of appeals may, but only in an 
exceptional case for imperative reasons, permit intervention where none 
was sought in the district court.” (quoting McKenna v. Pan Am. 
Petroleum Corp., 303 F.2d 778, 779 (5th Cir. 1962))); Amalgamated 
Transit Union Int’l, AFL-CIO v. Donovan, 771 F.2d 1551, 1552–53, 
1553 n.3 (D.C. Cir. 1985) (“A court of appeals may allow intervention 
at the appellate stage where none was sought in the district court ‘only 
in an exceptional case for imperative reasons.’” (quoting Landreth, 731 
F.2d at 1353)); In re Grand Jury Investigation, 587 F.2d 598, 601 (3d
Cir. 1978) (“Those courts which have considered the question have
recognized that while a court of appeals has power to permit intervention 
that power should be exercised only in exceptional circumstances for
imperative reasons.”); see also Ass’n for Educ. Fairness v. Montgomery
Cnty. Bd. of Educ., 88 F.4th 495, 499 (4th Cir. 2023) (discussing the
unique concerns raised by appellate intervention).
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intervention at the appellate stage while the case was held in 
abeyance to allow settlement negotiations. 
Although “[n]o statute or rule provides a general 
standard to apply in deciding whether intervention on appeal 
should be allowed,” the “policies underlying” Federal Rule 
of Civil Procedure 24 guide our analysis.  Cameron v. EMW 
Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 276–77 
(2022); Day v. Apoliona, 505 F.3d 963, 964 (9th Cir. 2007).  
To intervene as of right under Rule 24(a)(2), the States 
must show that: (1) their motion is timely; (2) they have a 
“significantly protectable interest relating to the property or 
transaction which is the subject of the action;” (3) “the 
disposition of the action may as a practical matter impair or 
impede [their] ability to protect that interest;” and (4) their 
“interest is inadequately represented by the parties to the 
action.”  Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 
1173, 1177 (9th Cir. 2011) (en banc) (quoting Sierra Club v. 
EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)).  The States 
“bear[] the burden of showing that these four elements are 
met.”  W. Watersheds Project v. Haaland, 22 F.4th 828, 835 
(9th Cir. 2022).2 
The States have not shown that they have a “significantly 
protectable interest” in the litigation.  Wilderness Soc’y, 630 
2 The dissent is correct that we generally construe Rule 24(a)(2)’s 
requirements for intervention as of right in the district court “broadly in 
favor of proposed intervenors.”  Wilderness Soc’y, 630 F.3d at 1179.  
Even so, we see nothing to suggest that Bates and Landreth—which 
counsel that appellate intervention requires closer scrutiny—have been 
overruled.  See Bates, 127 F.3d at 873; Landreth, 731 F.2d at 1353.  This 
is not to say that intervention at the appellate stage is impossible.  We 
have, in appropriate circumstances, permitted intervention when the 
relevant factors are satisfied.  See Peruta v. Cnty. of San Diego, 824 F.3d 
919, 940 (9th Cir. 2016); Day, 505 F.3d at 966. 
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F.3d at 1179.  A proposed intervenor “has a significant
protectable interest if the interest is protected by law and
there is a relationship between that interest and the claim or
claims at issue.”  Cooper v. Newsom, 13 F.4th 857, 865 (9th
Cir. 2021).  The States’ asserted interests are insufficient to
support intervention in this appeal for purposes of exerting
influence on settlement negotiations.
First, the States do not have a significant protectible 
interest in maintaining the Rule or in reducing immigration 
into the United States.  Although “federal policies frequently 
generate indirect effects on state revenues or state spending,” 
states have no legally protectible interest in compelling 
enforcement of federal immigration policies.  United States 
v. Texas, 599 U.S. 670, 677–80, 680 n.3 (2023); see also
Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984); Linda
R.S. v. Richard D., 410 U.S. 614, 619 (1973).3
Second, the States do not have a significant protectable 
interest in minimizing their expenditures and preserving 
their population-based political representation.  While an 
“economic interest may be sufficient to support a right of 
intervention,” it “must be concrete and related to the 
underlying subject matter of the action.”  Alisal Water Corp., 
370 F.3d at 919 (citing Arakaki v. Cayetano, 324 F.3d 1078, 
3 Although Texas is about Article III standing, it holds that absent other 
circumstances, states cannot assert an interest in procuring greater 
immigration enforcement.  See 599 U.S. at 677, 681–83.  The dissent 
cites no case for the proposition that the States can assert such an interest 
merely because the Rule’s lawfulness is at issue.  We decline to reach a 
conclusion contrary to the principles articulated by the Supreme Court in 
Texas. 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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1085, 1088 (9th Cir. 2003)).4  Even if disposition of this 
appeal might affect state expenditures and political 
representation, such incidental effects are not at issue in the 
litigation and are, in any event, attenuated and speculative.  
See id. at 920 (holding that an intervenor’s claimed interest 
cannot be “several degrees removed from the [issues] that 
are the backbone of [the] litigation”).5 
We therefore conclude that the States lack the requisite 
significant protectable interest to support intervention as of 
right under Rule 24(a).  “Because that failure alone is a 
sufficient ground to deny intervention as of right,” we do not 
reach the remaining factors.  See Cooper, 13 F.4th at 865 
(citing Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 
950 (9th Cir. 2009)). 
For similar reasons, we decline to exercise our discretion 
to allow the States to intervene permissively.  See Fed. R. 
Civ. P. 24(b)(1)(B); Cameron, 595 U.S. at 278–79 
(“Resolution of a motion for permissive intervention is 
4 The States allege that elimination of the Rule would cause increased 
immigration, and that at least some immigrants would end up in their 
states and thus strain state resources.  As this causal chain demonstrates, 
the States’ asserted interest in minimizing expenditures is thus removed 
from the “subject of the action”—and predicated on an alleged interest 
in procuring greater immigration enforcement.  Fed. R. Civ. P. 24(a)(2). 
5 See also Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 
1008 (8th Cir. 2007)) (“Economic interests or interests contingent on a 
sequence of events are generally insufficient for mandatory 
intervention.”); United States v. Peoples Benefit Life Ins. Co., 271 F.3d 
411, 415 (2d Cir. 2001) (“An interest that is remote from the subject 
matter of the proceeding, or that is contingent upon the occurrence of a 
sequence of events before it becomes colorable, will not satisfy the rule.” 
(quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 
F.2d 92, 97 (2d Cir. 1990)).
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EAST BAY SANCTUARY COVENANT V. BIDEN 
committed to the discretion of the court before which 
intervention is sought.”).  The “nature and extent” of the 
States’ interest in this appeal are far too attenuated to support 
intervention.  Perry, 587 F.3d at 955. 
Accordingly, the States’ Motion to Intervene is 
DENIED.
VANDYKE, Circuit Judge, dissenting: 
Our court has continually acknowledged that we should 
construe Rule 24(a)(2)’s requirements for intervention as of 
right “broadly in favor of proposed intervenors.”  Wilderness 
Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 
2011) (en banc) (citation omitted); see also Sw. Ctr. for 
Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 
2001) (“In general, we construe Rule 24(a) liberally in favor 
of potential intervenors.”); U.S. ex rel. McGough v. 
Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992). 
We have explained that this “liberal policy in favor of 
intervention serves both efficient resolution of issues and 
broadened access to the courts.”  Wilderness Soc’y, 630 F.3d 
at 1179 (quoting United States v. City of Los Angeles, 288 
F.3d 391, 397–98 (9th Cir. 2002)).  Yet the majority once
again inexplicably throttles this standard by cursorily
denying the States’ request to intervene in this case.  This
continues a troubling trend by our court of denying
intervention whenever it might upset a possible collusive
settlement resulting in a favored policy.  See, e.g., City &
County of San Francisco v. USCIS, 992 F.3d 742 (9th Cir.
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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2021); Cooper v. Newsom, 26 F.4th 1104 (9th Cir. 2022).1  
That is not what I think our court meant when it said “we 
construe Rule 24(a) liberally,” so I must respectfully dissent. 
When analyzing a motion to intervene as of right, we 
apply a four-part test: “(1) the motion must be timely; (2) the 
applicant must claim a ‘significantly protectable’ 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 or 
impede its ability to protect that interest; and (4) the 
applicant’s interest must be inadequately represented by the 
parties to the action.” Wilderness Soc’y, 630 F.3d at 1177 
(quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 
1993)).  The States’ motion here was timely because they 
acted swiftly after we granted the parties’ unexpected motion 
to stay.  Their interests would clearly be harmed by a 
settlement that negates the effect of the Rule because they 
would be forced to bear the additional costs of illegal 
immigration into their territories.  And the federal 
government’s openness to settlement discussions after 
months of aggressively defending the Rule evinces a change 
in position such that it no longer adequately represents the 
States’ interests.  I therefore would grant the States’ motion 
to intervene as of right. 
I.
The States’ Motion Was Timely.
As an initial matter, only the organizational plaintiffs
contest the timeliness of the States’ motion—the federal 
government does not.  “Timeliness is to be determined from 
1 Compare Peruta v. County of San Diego, 824 F.3d 919, 940–41 (9th 
Cir. 2016) (granting California’s motion to intervene at the appellate 
stage to argue against the Second Amendment).  
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all the circumstances … by the court in the exercise of its 
sound discretion.”  NAACP v. New York, 413 U.S. 345, 366 
(1973).  In making this determination, we generally look to 
“(1) the stage of the proceeding, (2) the prejudice to other 
parties, and (3) the reason for and length of the delay.”  Day 
v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (cleaned up)
(citation omitted).
The majority relies heavily on the first factor, 
emphasizing the appellate posture of these proceedings.  The 
majority makes much of this fact, citing cases in which, 
notwithstanding the generally permissive standard for 
intervention, our court and others have rejected attempts to 
intervene at the appellate stage after failing to seek 
intervention before the district court.  But it is not at all clear 
from the cited cases that this or any other circuit has adopted 
a rule under which the mere fact that a proceeding has 
reached the appellate stage, standing alone, is a particularly 
relevant factor.  In my view, there is nothing particularly 
unique about the “appellate” nature of the proceedings 
except that often it is a good proxy for the fact that a case has 
already been going on for quite a long time and the putative 
intervenors could have sought to intervene earlier.  Under 
ordinary circumstances, a case that has already been 
appealed would have afforded a potential intervenor more 
than adequate time to intervene and protect its interests. 
Thus, there is often a good reason to conclude a motion to 
intervene is untimely where the intervenor had notice that its 
rights were not adequately protected by the parties before the 
district court, yet nonetheless declined to seek intervention 
at that stage. 
But, as illustrated by these proceedings, it can also be the 
case that an intervenor’s rights were adequately protected 
until a party abruptly changed its position at the appellate 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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stage.  Under such circumstances, it makes little sense to 
conclude that a motion to intervene, brought promptly after 
the intervenor discovered its interests were no longer 
adequately represented, is untimely just because the party 
waited until the appeal stage to abruptly change its litigation 
posture.  Instead of applying the majority’s wooden, 
inflexible standard that apparently accounts for nothing 
more than the stage of the proceeding, we would do well to 
remember that the “most important circumstance relating to 
timeliness is that the [States] sought to intervene as soon as 
it became clear that [their] interests would no longer be 
protected by the parties in the case.”  Cameron v. EMW 
Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 279–80 (2022) 
(cleaned up and emphasis added).  That “most important” 
consideration strongly weighs in favor of intervention here. 
Not only does the majority dramatically overread the 
supposed rule from its lead case, Bates v. Jones, but the result 
in that case actually supports granting the States’ request for 
intervention.  127 F.3d 870 (9th Cir. 1997).  In Bates, the 
state raised for the first time after oral argument before this 
court a position that would imperil the intervenors’ 
interests—as our court noted, “[u]ntil that assertion, the 
proposed intervenors believed that they would be able to 
benefit from a favorable ruling by this court.”  Id. at 873.  
Similarly, the federal government here did not raise the 
prospect of a settlement that could affect the States’ interest 
in the Rule until after we had already heard oral argument. 
Until then, the government’s vigorous defense of the Rule 
led the States to reasonably believe that their interests were 
adequately represented.  The Bates court ultimately 
considered the motion to intervene timely even on appeal 
because the intervenors were not aware until then that their 
interests would no longer be protected.  Id.  The States’ 
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motion here is timely for the same reason: the States were 
understandably unaware of any possibility that their interests 
were not adequately being protected until the government 
changed its position on defending the Rule by seeking an 
abeyance from this court after oral argument was heard. 
The other cases cited by the majority do not support the 
majority’s rule because none of them involve a case where a 
party vigorously defended the intervenor’s interests until 
changing course at the last minute during the appeal.  For 
example, in Landreth Timber Co. v. Landreth, the 
intervenors sought to intervene at the appellate stage 
“without stating any reason for failure to intervene in the 
district court” beyond wanting to avail themselves of a legal 
doctrine that was already implicated in the defendants’ 
litigation position.  731 F.2d 1348, 1353 (9th Cir. 1984), 
rev’d on other grounds, 471 U.S. 681 (1985).  The Landreth 
court found it important that “intervention would raise new 
issues of fact and law not before the district court.”  Id.  In 
this case, by contrast, the States have provided a compelling 
reason for not intervening earlier: their interests were 
adequately protected by the government’s then-ongoing 
defense of the Rule.  And because the States merely seek to 
continue the same defense that the government might now 
abandon, their intervention introduces no new issues of fact 
or law.2 
2 The remaining cases cited by the majority are similarly distinguishable. 
For example, in Public Service Company of New Mexico v. Barboan, the 
party with whom the intervenor’s interests aligned continued to “have 
the same legal objective” throughout the case and the intervenor “had 
ample opportunity to be heard at the district court and declined to do so.” 
857 F.3d 1101, 1113–14 (10th Cir. 2017).  And in Amalgamated Transit 
Union International, AFL-CIO v. Donovan, “the alleged conflict of 
interest between [the intervenor] and the [party] existed at the 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
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The Fourth Circuit case cited by the majority is even less 
relevant, and the majority’s reliance on it is especially 
puzzling.  In Association for Education Fairness v. 
Montgomery County Board of Education, the intervenors 
actually sought intervention in the district court, 88 F.4th 
495, 499 (4th Cir. 2023), which already suggests that it is 
nothing like the present case.  And when the district court 
finally denied their motion to intervene, it did so not 
“because it was unwarranted under” Rule 24, but because 
“the intervention question had been rendered academic by 
its decision to enter a final judgment for the parties on whose 
side the organizations sought to intervene.”  Id.  After the 
adverse party appealed that judgment, the intervenors again 
sought to intervene. 
Because the intervention issue was unnecessary until the 
appeal was initiated, the Fourth Circuit “reject[ed] the 
argument that the organizations delayed unduly in seeking to 
bring the intervention issue before th[e] Court.”  Id. at 500.  
That court then analyzed the other intervention factors and, 
although it determined the question of “whether the existing 
parties [would] adequately protect the organizations’ 
interests” was a “close one,” it ultimately found this factor 
unsatisfied for the straightforward reason that the party 
“unambiguously represented to th[e] Court” that it intended 
to defend the position advanced by the intervenors.  Id. at 
500–01.  Because that issue was close, the Fourth Circuit 
denied the motion to intervene without prejudice so that the 
commencement of th[e] litigation,” so the reasons provided for 
intervention on appeal “would have been equally applicable at much 
earlier stages of th[e] case.”  771 F.2d 1551, 1554 (D.C. Cir. 1985).  In 
none of the cases cited by the majority did the party that ostensibly 
protected the intervenor’s interests abandon its defense of those interests 
at the appellate stage.  
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intervenors could renew their request if the party failed to 
fulfill its promise to advance that position.  Id. at 502.  As 
the Fourth Circuit denied intervention on the sole basis that 
the intervenors’ interests were adequately represented—a 
prong of the intervention analysis entirely unrelated to the 
majority’s rationale here—Education Fairness cannot 
support the majority’s supposed rule that a motion to 
intervene presented on appeal is untimely.   
To reiterate, none of the cases cited by the majority 
where a court denied intervention at the appeal stage as 
untimely involve anything even close to this situation, where 
the federal government vigorously defended the Rule but 
then appears poised to abandon its position on appeal.  The 
majority brusquely notes that it is “unaware of any instance 
where a court has permitted intervention” under these unique 
circumstances, but that observation cuts both ways: the lack 
of precedent going either way is hardly surprising given that 
it is a rare thing indeed for the government to pull this kind 
of surprising switcheroo after litigating a case all the way 
past oral argument on appeal.  The government’s highly 
unusual behavior not only explains why intervention is 
justified; it makes one wonder if the parties are engaging in 
“rulemaking-by-collective-acquiescence” or some other 
collusive strategy designed to lessen the political impact of 
this litigation during an election year.  Arizona v. City & 
County of San Francisco, 596 U.S. 763, 766 (2022) 
(Roberts, C.J., concurring) (quoting City & County of San 
Francisco v. USCIS, 992 F.3d 742, 744 (9th Cir. 2021) 
(VanDyke, J., dissenting)).   
Regardless, the bottom line in a case like this is 
ultimately pretty simple: where the States “sought to 
intervene as soon as it became clear that [their] interests 
would no longer be protected by the parties in the case,” their 
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19 
motion is not untimely simply because it was filed at the 
appeal stage.  Cameron, 595 U.S. at 279–80 (cleaned up).3  
In contrast to the majority’s string cite of dissimilar cases, a 
more analogous situation to the present circumstance is the 
Supreme Court’s practice of appointing an amicus to argue a 
position before the Supreme Court where a party is no longer 
willing to do so.  See, e.g., Mata v. Lynch, 576 U.S. 143, 147 
(2015) (“And because the Federal Government agrees with 
Mata that the Fifth Circuit had jurisdiction over his appeal, 
we appointed an amicus curiae to defend the judgment 
below.”).  Like many situations in which the Supreme Court 
is faced with substantial, unexpected agreement between 
adverse parties, here, the government has now indicated it 
may take a joint position with the plaintiffs, leaving no one 
to argue for the validity of the Rule.  The States don’t seek 
to make any new arguments; they just want to continue to 
advance the same position that may be abandoned by the 
government.  If the practice of allowing a third party to argue 
3 The majority emphasizes that intervention at the appellate stage is not 
“impossible,” citing two cases, one of which is Peruta, in which 
California was permitted to intervene in order to argue against the 
Second Amendment.  Aside from furthering the ugly perception that our 
intervention standard may implicitly differ based on a putative 
intervenor’s position on the merits, cases like Peruta actually support 
intervention here.  In Peruta, our court granted California’s motion to 
intervene at the appellate stage because, even though “California sought 
to intervene at a relatively late stage in the proceeding,” it “had no strong 
incentive to seek intervention … at an earlier stage, for it had little reason 
to anticipate” that its interests would not be protected.  824 F.3d at 940. 
Sound familiar?  Similarly, in Day, we granted Hawaii’s motion to 
intervene at the appellate stage and recognized that “[a] would-be 
intervenor’s delay in joining the proceedings is excusable when the 
intervenor does not know or have reason to know that his interests might 
be adversely affected by the outcome of litigation.”  505 F.3d at 965 
(cleaned up). 
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a neglected position is good enough for an appeal before the 
Supreme Court, it should be good enough for this appellate 
court.  
We are particularly likely to conclude a motion to 
intervene on appeal is timely where the parties have not 
alleged any prejudice.  See Bates, 127 F.3d at 874 (“Like 
other cases in which intervention has been allowed on 
appeal, the state does not assert that it will be prejudiced by 
intervention, and we find no reason to think otherwise.”); 
Peruta, 824 F.3d at 940 (granting California’s motion to 
intervene at the appellate stage because even though the state 
“sought to intervene at a relatively late stage in the 
proceeding,” “the timing of California’s motion to intervene 
did not prejudice Plaintiffs”).  Here, neither the plaintiffs nor 
the government have alleged they would be prejudiced by 
granting the States’ motion to intervene.  The second factor 
therefore also supports the timeliness of the States’ motion 
for intervention. 
As discussed above, “the most important circumstance 
relating to timeliness,” Cameron, 595 U.S. at 279–80, 
involves the third prong: if the States delayed, and their 
reasons for doing so.  The critical date for assessing delay is 
“when proposed intervenors should have been aware that 
their interests would not be adequately protected by the 
existing parties.”  W. Watersheds Project v. Haaland, 22 
F.4th 828, 836 (9th Cir. 2022) (citation omitted).  The States
argue that they were unaware that their interests were not
being protected by the government until the filing of the joint
motion to hold the appeal in abeyance.  And for good reason:
the government actually defended the Rule until that time.
The plaintiffs argue that in spite of the government’s 
defense of the Rule, the States should have known that their 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
21 
interests would not be protected because of the 
administration’s hostility to the States’ general policy 
preferences.  But just because the States may have general 
policy preferences different than the administration’s does 
not mean that they have opposing interests in every case. 
The very case the plaintiffs rely on highlights this issue.  In 
United States v. Washington, we denied intervention because 
of years-long, ongoing hostility regarding the actual 
litigation in that case.  86 F.3d 1499, 1503–04 (9th Cir. 
1996).  Here, the government initially defended the Rule, a 
litigation position that aligned with the States’ interests.  So 
even assuming the States may disagree with many of the 
government’s immigration positions, their interests were 
aligned in this litigation by the government’s continued 
defense of the Rule.  Their interests only ceased to be 
adequately protected once the government gave up its 
defense of the Rule and entered into settlement negotiations. 
Furthermore, endorsing the plaintiffs’ position would 
have wide-reaching implications for future litigation.  Their 
argument is essentially that the States should have moved to 
intervene at the very beginning of this litigation because 
their policy positions made them generally distrustful of this 
administration’s commitment to defending our nation’s 
immigration laws.  If we applied this reasoning, then any 
state with different policy positions than a current 
administration would have to intervene at the beginning of 
any suit against the government it could have an interest in—
or essentially waive its intervention rights entirely.  Given 
the diversity of policy opinions in this country, there would 
conceivably always be some states generally at odds with an 
administration, and those states would be saddled with the 
burden of seeking to intervene in every case against the 
federal government, even where the government has acted 
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consistently with their interests in that particular litigation. 
Part of the reason we are generally generous in allowing 
intervention, Wilderness Soc’y, 630 F.3d at 1179, is precisely 
to avoid requiring parties to seek merely prophylactic 
intervention where it’s unnecessary. 
Because the government adequately represented the 
States’ interests in this litigation until it didn’t, the States 
could not have known that their interests would be 
abandoned until the parties filed their joint motion.  The 
States moved swiftly to intervene after the joint motion was 
filed, and so the motion to intervene was timely.  See 
Cameron, 595 U.S. at 279–80. 
II. The States’ Interests Could be Impaired by a
Disposition in This Action.
The two factors associated with the States’ interests are
related and can be addressed together.  As an initial matter, 
the States do not need Article III standing to intervene.  The 
Supreme Court has told us that, in the intervention context, 
“[f]or all relief sought, there must be a litigant with 
standing.”  Town of Chester v. Laroe Estates, Inc., 581 U.S. 
433, 439 (2017).  So “an intervenor of right must have 
Article III standing in order to pursue relief that is different 
from that which is sought by a party with standing.”  Id. at 
440 (emphasis added).  Because the States seek to intervene 
as defendants and seek only the same outcome as the 
government—to uphold the Rule—standing is not required. 
While intervention does not necessarily require standing, 
it does require a “significantly protectable interest” that 
could be impaired by a disposition of the action.  Wilderness 
Soc’y, 630 F.3d at 1177.  In making this determination, we 
are guided by “practical and equitable considerations and 
construe [this requirement] broadly in favor of proposed 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
23 
intervenors.”  Id. at 1179 (cleaned up).  The States easily 
satisfy this permissive standard. 
The States have put forward a number of interests that 
would be impaired by an abandonment of the Rule.  When 
immigrants enter the country illegally and settle in a state, 
that state has mandatory duties to provide certain 
government resources to them.  See, e.g., Plyler v. Doe, 457 
U.S. 202, 230 (1982) (public education); Gideon v. 
Wainwright, 372 U.S. 335, 345 (1963) (publicly funded 
counsel).  And even where the States cannot provide certain 
resources to illegal immigrants because of state or federal 
law, they still incur increased administrative costs to 
determine if unlawfully present applicants are eligible.  See, 
e.g., Kan. Stat. Ann. § 8-237(i); 8 U.S.C. § 1621(a), (c)(1).
The States also assert a political interest in maintaining
the Rule because an increase in other states’ populations 
from illegal immigration would give those states additional 
representatives, electoral votes, and federal funding, and 
necessarily take those from the states seeking intervention. 
See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 
(2019).  According to the government’s own data, there were 
1.7 million border encounters between October 2023 and 
March 2024 alone.4  Abandoning the Rule and increasing the 
influx of illegal immigrants therefore would have a sizeable 
and concrete impact on the States’ asserted interests. 
In spite of the permissive intervention standard, the 
majority concludes that these interests are not protectable. 
In doing so, the majority relies in part on United States v. 
Texas, 599 U.S. 670 (2023).  But Texas stands for the 
4 Customs 
and 
Border 
Protection, 
Nationwide 
Encounters, 
https://www.cbp.gov/newsroom/stats/nationwide-encounters. 
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proposition that states do not have standing to sue to compel 
the Executive to “alter its arrest policies so as to make more 
arrests.”  Id. at 686.  In coming to this conclusion, the 
Supreme Court drew from a long line of cases concluding 
judicial review does not extend to refusals of executive 
enforcement.  Id. at 680 (collecting sources for the 
proposition that “federal courts are generally not the proper 
forum for resolving claims that the Executive Branch should 
make more arrests or bring more prosecutions”). 
There is a clear difference between the executive’s 
nonenforcement of a rule and its effective complete removal 
of the rule altogether through collusive settlement.5  
Consider a simplistic example involving speed limits.  A 
police force could decide that it will no longer enforce the 
speed limit on motorists in certain circumstances.  Under 
Texas, it seems a party might not have standing to judicially 
compel the police force to enforce the speed limit.  On the 
other hand, this case is more akin to a city attorney colluding 
with a plaintiff to get rid of a lawfully enacted speed limit 
altogether through settlement, rather than doing so through 
5 The Supreme Court in the Texas case itself recognized that states could 
have an interest in situations other than the exact enforcement issues 
presented in that case.  For example, the Court suggested that standing 
might exist where “the Executive Branch wholly abandoned its statutory 
responsibilities to make arrests or bring prosecutions,” where “a 
challenge to an Executive Branch policy … involves both the Executive 
Branch’s arrest or prosecution priorities and the Executive Branch’s 
provision of legal benefits or legal status,” and where a challenged policy 
governs “the continued detention of noncitizens who have already been 
arrested.”  599 U.S. at 682–83.  The situation here is, if anything, even 
more distinct than those examples provided in Texas, since those 
examples were all various twists on enforcement and arrests.  Here, the 
States don’t assert any interest in enforcement—merely in the underlying 
validity of the Rule itself. 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
25 
proper legislative or regulatory channels.  This case is not 
about refusal to enforce a rule; this case is about whether the 
rule itself is valid or not.   
The plaintiffs in this case need to be careful what they 
ask for.  Reading Texas to say that affected parties have no 
protectable interest in the continuing validity (or invalidity) 
of a rule would expand it so far that even the organizational 
plaintiffs in this case would not have standing.  The majority 
concludes that the States’ increased expenditures related to 
the abandonment of the Rule do not impair a protectable 
interest.  But increased expenditures due to the Rule is 
exactly the injury that supposedly gives the organizational 
plaintiffs standing to sue under our precedent.  See E. Bay 
Sanctuary Covenant v. Biden, 993 F.3d 640, 664 (9th Cir. 
2021).   
The majority also concludes that the effects that vacating 
the Rule might have on the States’ expenditures and political 
representation are “attenuated and speculative.”  But the 
States have identified a number of concrete ways that the 
Rule protects their economic and political interests, as well 
as ways those interests would necessarily be impaired if the 
Rule were abandoned.  See id. at 662–64 (relying on similar 
reasoning to explain the organizational plaintiffs’ stake in 
this litigation).  As the government itself has recognized in 
this litigation, “increases in the number of migrants 
unlawfully present in the country” directly “strains [] 
government operations and resources.”  That is no less true 
of the States than it is of the federal government. 
At the end of the day, the standard for intervention is a 
permissive one.  “Constru[ing] the [intervention] Rule 
broadly in favor of [the] proposed intervenors,” Wilderness 
Soc’y, 630 F.3d at 1179 (cleaned up), the increased 
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expenditures and political harms that the States will incur if 
the Rule is abandoned represent a sufficient impairment of 
the States’ protectable interests. 
III.
The States’ Interests Are Inadequately Represented
by the Government.
Like the rest of the intervention rule, this factor too is 
supposed to be permissive.  Indeed, “[t]he burden of 
showing inadequacy of representation is ‘minimal’ and 
satisfied if the applicant can demonstrate that representation 
of its interests ‘may be’ inadequate.”  W. Watersheds, 22 
F.4th at 840–41 (cleaned up).  And like the rest of the factors,
this lenient standard is easily satisfied here.
The government argues that it adequately represents the 
States’ interest in maintaining the Rule because it “has 
repeatedly defended the Rule’s legality.”  But that was before 
the government abruptly changed course and asked to put 
this case on ice while it considers settlement.  From the 
beginning of this litigation until submitting the joint motion, 
the government has made clear that the Rule is critical to the 
ongoing administration of our border.6  Consistent with this 
representation, the government vigorously defended the 
Rule in the district court and on appeal and has indicated an 
intent to petition the Supreme Court if we vacated the Rule. 
On the other hand, the organizational plaintiffs insist that the 
6 As the government explained, “[w]ithout the Rule, the expected 
increase in border encounters threatened to overwhelm the Departments’ 
‘ability to effectively process, detain, and remove, as appropriate, the 
migrants encountered,’ with attendant increases in the number of 
migrants unlawfully present in the country, strains on government 
operations and resources, health and safety concerns for migrants at 
overcrowded processing facilities, and impacts on local communities 
along the southwest border.” 
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EAST BAY SANCTUARY COVENANT V. BIDEN 
27 
Rule is contrary to law, and harms themselves and the 
immigrants they help.  As I have previously observed, the 
plaintiffs’ position makes it difficult to imagine how they 
could accept any settlement less than rescission of the rule. 
See E. Bay Sanctuary Covenant v. Biden, 93 F.4th 1130, 1134 
(9th Cir. 2024) (VanDyke, J., dissenting).  Therefore, the 
very fact that the government is now considering such a 
settlement suggests that its position regarding this litigation 
has significantly changed. 
The States simply want to step in and continue the 
government’s previous litigation position.  They have made 
clear that they oppose settlement for a number of compelling 
reasons, and so actively defending the Rule is the only way 
to continue protecting their interests.  First, the States argue 
that the Rule is either lawful or it is not, and since this Court 
was poised to decide the issue before the parties filed a joint 
ruling, settlement now works only to unsettle the law. 
Second, since the factual basis for the plaintiffs’ standing is 
contested, “it would be absurd for the federal government to 
change federal policy based on litigation brought by parties 
who have no legally enforceable interest in the first place.” 
Finally, the government has represented elsewhere that the 
settlement discussions include “related policies,” and so a 
settlement could affect the interests of the States in other 
unforeseen ways.  The government’s decision to enter into 
settlement negotiations rather than continue to actively 
defend the rule therefore represents a break with the States’ 
interests.  And “[u]nless the [States] [are] made [parties] to 
these proceedings,” if the government settles this case no one 
will seek a final decision from this panel, “no petition for 
rehearing can be filed in this Court, and there will be no 
opportunity for the Supreme Court to consider whether to 
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grant certiorari.”  Day, 505 F.3d at 966.  We have previously 
considered these circumstances “determinative.”  Id. 
Given that it is no longer clear that the government will 
continue to defend the Rule, the government’s representation 
of the States’ interests—at the very least—“may be” 
inadequate.  W. Watersheds, 22 F.4th at 840.  That is all that 
is required for this factor to be satisfied.  Id. 
* * *
The standard for intervention as of right is permissive 
and should be “construe[d] … broadly in favor of proposed 
intervenors.”  Wilderness Soc’y, 630 F.3d at 1179 (cleaned 
up).  Under this lenient standard, the States’ motion is timely, 
their significantly protectable interests may be impaired by 
a disposition of this case, and those interests are inadequately 
represented by the government.  I therefore would grant their 
motion to intervene.  Because the States are entitled to 
intervene as of right, I do not address the States’ request for 
permissive intervention. 
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