State of Texas Motion to Intervene — Huisha-Huisha v. Mayorkas

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No. 21-5200 
In the United States Court of Appeals 
for the D.C. Circuit 
 
Nancy Gimena Huisha-Huisha, et al, 
 
 
 
 
 
 
 
 
 
Plaintiffs-Appellees, 
v. 
Alejandro Mayorkas, et al, 
 
 
 
 
 
 
 
 
 
Defendants-Appellants, 
and 
The State of Texas, 
 
 
 
 
 
 
 
Proposed Intervenor-Defendant. 
 
On Appeal from the United States District Court 
for the District of Columbia 
Case No. 1:21-cv-00100-EGS 
 
THE STATE OF TEXAS’ MOTION TO INTERVENE AS 
INTERVENOR-DEFENDANT 
  
 
Ken Paxton 
Attorney General of Texas 
 
Brent Webster 
First Assistant Attorney General 
 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1700 
Fax: (512) 474-2697 
Judd E. Stone II 
Solicitor General 
 
Ryan S. Baasch 
Assistant Solicitor General 
ryan.baasch@oag.texas.gov 
 
Leif A. Olson 
Special Counsel 
 
Counsel for Proposed Intervenor-De-
fendant the State of Texas 
 
 
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TABLE OF CONTENTS 
TABLES OF AUTHORITIES ...................................................................... iii 
INTRODUCTION ....................................................................................... 1 
BACKGROUND .......................................................................................... 5 
A.
Legal Background ..................................................................................... 5 
B.
Texas’ Substantial Interest In This Case ................................................... 7 
C.
Procedural History .................................................................................. 10 
LEGAL STANDARD .................................................................................. 11 
I.
The Court Should Grant Intervention As Of Right ....................................... 12 
A.
Texas Has Standing ................................................................................ 12 
B.
Texas’ Motion Is Timely ........................................................................ 13 
C.
Texas Has Significant Protectable Interests Directly Affected By This
Litigation ......................................................................................................... 16 
D.
Disposition Of This Action May Impair Or Impede Texas’ Ability To
Protect Its Interests ......................................................................................... 16 
E. Defendants Do Not Adequately Represent Texas’ Interests ...................... 17 
II.
In The Alternative, The Court Should Permit Permissive Intervention ..... 19 
CONCLUSION .......................................................................................... 20 
CERTIFICATE AS TO PARTIES AND AMICI .......................................... 21 
CERTIFICATE OF COMPLIANCE .......................................................... ...22 
CERTIFICATE OF SERVICE .................................................................... ..22 
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TABLE OF AUTHORITIES 
Page(s) 
Cases: 
Air All. Houston v. EPA, 
906 F.3d 1049 (D.C. Cir. 2018) ........................................................................ 12 
Alfred L. Snapp & Son v. P.R. ex rel. Barez, 
458 U.S. 592 (1982) ......................................................................................... 13 
Amalgamated Transit Union Int’l v. Donovan, 
771 F.2d 1551 (D.C. Cir. 1985).......................................................................... 15 
Crossroads Grassroots Policy Strategies v. FEC, 
788 F.3d 312 (D.C. Cir. 2015) ..................................................................... 11, 12 
Del. Dep’t of Nat. Res. v. EPA, 
785 F.3d 1 (D.C. Cir. 2015) .............................................................................. 13 
E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 
950 F.3d 177 (3d Cir. 2020) ................................................................................2 
Eagle Pharms. v. Azar, 
952 F.3d 323 (D.C. Cir. 2020) .......................................................................... 14 
EEOC v. Nat’l Children’s Ctr., Inc., 
146 F.3d 1042 (D.C. Cir. 1998) ........................................................................ 19 
Env’t. Def. Fund, Inc. v. Costle, 
79 F.R.D. 235 (D.D.C. 1978) ............................................................................ 17 
Flores v. Sessions, 
862 F.3d 863 (9th Cir. 2017) ..............................................................................2 
Fund for Animals Inc. v. Norton, 
322 F.3d 728 (D.C. Cir. 2003) .......................................................................... 17 
Mass. Sch. of Law v. United States, 
118 F.3d 776 (D.C. Cir. 1997) ........................................................................... 11 
NRDC v. Costle, 
561 F.2d 904 (D.C. Cir. 1977) .......................................................................... 17 
Nuesse v. Camp, 
385 F.2d 694 (D.C. Cir. 1967) .......................................................................... 16 
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Roane v. Leonhart, 
741 F.3d 147 (D.C. Cir. 2014) ...................................................................... 14, 15 
Smith v. Marsh, 
194 F.3d 1045 (9th Cir. 1999) ........................................................................... 14 
Smoke v. Norton, 
252 F.3d 468 (D.C. Cir. 2001) .......................................................................... 14 
Smuck v. Hobson, 
408 F.2d 175 (D.C. Cir. 1969) .......................................................................... 17 
State of Texas v. Biden, 
2021 WL 3603341 (N.D. Tex. Aug. 13, 2021) ................................................. 3, 9 
State of Texas v. Biden et al., 
Case No. 4:21-CV-579-P (N.D. Tex. filed April 22, 2021)......................... 3-4, 10 
Texas v. United States, 
809 F.3d 134 (5th Cir. 2015) ....................................................................... 10, 12 
Trbovich v. United Mine Workers of Am., 
404 U.S. 528 (1972) ......................................................................................... 17 
United States v. Am. Tel. & Tel. Co., 
642 F.2d 1285 (D.C. Cir. 1980) ........................................................................ 17 
Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland Sec., 
395 F. Supp. 3d 1 (D.D.C. 2019) ...................................................................... 17 
Waterkeeper All., Inc. v. Wheeler, 
330 F.R.D. 1 (D.D.C. 2018).............................................................................. 17 
Wyoming v. Oklahoma, 
502 U.S. 437 (1992).......................................................................................... 12 
Constitutional Provisions, Statutes, and Rules: 
42 U.S.C. § 265................................................................................1, 5, 6, 10, 11, 19 
42 C.F.R.: 
 
§ 34.7(a) ............................................................................................................. 9 
 
§ 71.40 ............................................................................................................... 6 
D.C. Cir. R.: 
 
 28(d)(3)........................................................................................................... 15 
 
28(d)(5) ........................................................................................................... 15 
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Fed. R. App. Proc. 15(d) .................................................................................. 13, 14 
Fed. R. Civ. Proc.: 
24 ..................................................................................................................... 11 
24(a) ...................................................................................................... 11,17, 20 
24(b) ................................................................................................................20 
 24(b)(1)(B) ................................................................................................. 11, 12 
1 Tex. Admin. Code: 
§ 355.8201-.8202................................................................................................ 9 
§ 355.8212-.8215 ................................................................................................ 9 
§ 366.903 ........................................................................................................... 9 
Other Authorities: 
Foreign Quarantine: Suspension of Introduction of Persons into 
United States from Designated Foreign Countries or Places for 
Public Health Purposes: 
85 Fed. Reg. 16,559 (Mar. 24, 2020) .................................................................. 5 
85 Fed. Reg. 56,424 (Sept. 11, 2020) .................................................................. 6 
Agreement Between Department of Homeland Security and the State 
of Texas (Jan. 8, 2021) ....................................................................................... 7 
7C Charles Alan Wright et al., Federal Practice and Procedure § 1916 
(3d ed. 2007) ............................................................................................... 15, 19 
Declaration of Blas Nunez-Neto ¶ 11, Texas v. Biden, 
Case No. 2:21-cv-00067-Z (N.D. Tex. Sept. 15, 2021), ECF No. 105 ................. 3 
Declaration of Lisa Kalakanis ¶ 7, filed with Appendix to Texas’ Renewed 
Motion for Preliminary Injunction, State of Texas v. Biden et al., 
Case No: 4:21-cv-00579-P (N.D. Tex. Sept. 8, 2021), ECF No. 69 .................... 9 
Hidalgo County Judge Richard F. Cortez, Declaring a Local State of 
Disaster (Aug. 2, 2021) ................................................................................... 7, 8 
Joint Stipulation of Dismissal Without Prejudice at 1, J.D. v. Azar, 
No. 17-cv-02122-TSC (D.D.C. Sept. 29, 2020), ECF No. 168 ...........................2 
Mayor Bruno J. Lozano, City of Del Rio Emergency Local Disaster 
Declaration (Sept. 17, 2021) ................................................................................8 
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Mem. from Secretary Alejandro N. Mayorkas at 2, Guidelines for the 
Enforcement of Civil Immigration Law (Sept. 30, 2021) ........................................4 
Order Suspending the Right to Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, 
85 Fed. Reg. 65806, 65,806 (Oct. 16, 2020) ................................................. 6, 10 
Public Health Reassessment and Order Suspending the Right to 
Introduce Certain Persons from Countries Where a Quarantinable 
Communicable Disease Exists, 86 Fed. Reg. 42,828 (Aug. 5, 2021) ........... 6, 7, 9 
Settlement Agreement and Release, Mendez Rojas v. Johnson, 
No. 2:16-cv-01024-RSM (W.D. Wash. July 28, 2020), ECF No. 79-
1 ......................................................................................................................... 3 
Webb County Judge Tano E. Tijerina, Corrected Declaration of Local 
State of Disaster and Order (July 21, 2021) ..........................................................8 
 
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INTRODUCTION 
 
The State of Texas moves to intervene to defend the lawfulness of the “Title 42 
Process”—a fundamental part of the broader national toolkit that is necessary to se-
cure the border and to protect the health and well-being of U.S., and, particularly, 
Texas residents during the ongoing COVID-19 pandemic. Under 42 U.S.C. § 265, 
the Department of Health and Human Services (“HHS”) is authorized to promul-
gate regulations that “prohibit” the “introduction” of persons from a foreign coun-
try affected by a communicable disease. Pursuant to that authority, Defendants-Ap-
pellants (“Defendants”) promulgated a regulation and subsequent orders that limit 
the likelihood that foreign persons will exacerbate the COVID-19 crisis domestically. 
Specifically, certain aliens who enter the country from designated nations affected 
by COVID-19 are subject to immediate expulsion.  
 
Texas has a critical interest in the continued use of the Title 42 Process because 
the State suffers tremendous and irreparable injury when an uncontrolled influx of 
aliens with high COVID-19 positivity rates cross the border and enter its communi-
ties. There is no dispute here that both things are happening: There is a substantial 
influx of aliens crossing the border, and they have disproportionately high COVID-
19 positivity rates. As a result, and as explained in greater detail infra at 7-8, multiple 
Texas border counties have declared states of disaster, the health of Texas’ residents 
has been—and continues to be—jeopardized, and Texas’ fisc is on the hook for sub-
stantial increases in healthcare and other expenditures. 
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On January 12, 2021, Plaintiffs—a group of aliens who have entered the United 
States illegally—brought suit to enjoin Defendants from applying the Title 42 Pro-
cess to a class of aliens who come to the United States as a “family unit.” Although 
Texas has significant interests in the resolution of this case, it did not initially seek 
to intervene while Defendants were adequately defending the Title 42 Process. 
Evolving circumstances, however, have made it apparent that Texas’ interests di-
verge from Defendants’ and that Texas’ intervention is necessary for its interests to 
be adequately represented. That is so because of the combination of two factors: 
 
First, the federal government has a long and controversial history of using litiga-
tion settlements to set national policy on important immigration and border security 
issues. The most notorious example is the so-called Flores agreement, a 1997 settle-
ment between the federal government and a class of alien minors which “estab-
lish[ed] a ‘nationwide policy for the detention, release, and treatment of [alien] mi-
nors in the custody of the’” Immigration and Naturalization Service. Flores v. Ses-
sions, 862 F.3d 863, 866 (9th Cir. 2017). That agreement dictated national immigra-
tion policy for more than 20 years. And courts nationwide determined that they were 
bound by it. E.O.H.C. v. Sec’y U.S. Dep’t of Homeland Sec., 950 F.3d 177, 191 (3d Cir. 
2020). It is highly unlikely that this agreement would have materialized in the form 
that it did if other interested parties were present in the litigation. And there are 
multiple other, more recent, examples of this practice. See, e.g., Joint Stipulation of 
Dismissal Without Prejudice at 1, J.D. v. Azar, No. 17-cv-02122-TSC (D.D.C. Sept. 
29, 2020), ECF No. 168 (settlement granting unaccompanied immigrant minors in-
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creased abortion rights); Settlement Agreement and Release, Mendez Rojas v. John-
son, No. 2:16-cv-01024-RSM (W.D. Wash. July 28, 2020), ECF No. 79-1 (settlement 
granting significant benefits to asylum seekers). 
 
Second, multiple specific recent actions have called into question whether De-
fendants will continue to defend the Title 42 Process, or whether they might take 
action (i.e., a settlement, failure to pursue an appeal, or otherwise) that would be 
adverse to Texas. Specifically: 
• Texas is litigating multiple immigration and border security disputes against 
Defendants in the Northern District of Texas, including how an injunction 
requiring Defendants to re-implement Migrant Protection Protocols for asy-
lum seekers (colloquially known as the Remain in Mexico policy) will be effec-
tuated. State of Texas v. Biden, 2021 WL 3603341 (N.D. Tex. Aug. 13, 2021). 
In a September 15, 2021 Status Report about their progress re-implementing 
that policy, however, Defendants represented that they were “assessing the 
interplay” of the Title 42 Process with the Protocols, and that they have 
“been working with non-governmental partners to identify individuals who 
meet specified vulnerability criteria that merit . . . exceptions from Title 42.”  
Declaration of Blas Nunez-Neto ¶ 11, Texas v. Biden, Case No. 2:21-cv-00067-
Z (N.D. Tex. Sept. 15, 2021), ECF No. 105-1. In other words, Defendants ap-
pear to be considering how to water down the Title 42 Process. 
• Texas is also litigating whether Defendants’ steep reduction in the actual use 
of the Title 42 Process complies with applicable law. See State of Texas v. Biden 
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et al., Case No. 4:21-CV-579-P (N.D. Tex. filed April 22, 2021). On Septem-
ber 21, 2021, Defendants filed a brief in that litigation defending their failure 
to fully apply the Title 42 Process, asserting that “[e]ven if [they] determine[] 
that there is a serious danger of the introduction of a communicable disease 
into the United States, [they are] not required to do anything.” Consolidated 
Brief in Support of Defendants’ Motion to Dismiss, Biden, supra, (Sept. 21, 
2021), ECF No. 79 (internal quotation marks omitted). As a purely legal mat-
ter, that is a striking assertion. But it is also a telling indicator of where the 
Defendants’ border security and related health priorities might lie.  
• On September 31, 2021, the Secretary of the Department of Homeland Secu-
rity issued a memorandum indicating that federal immigration agents should 
refrain from apprehending or removing millions of illegal, removable aliens re-
siding throughout the country. See Mem. from Secretary Alejandro N. Mayor-
kas at 2, Guidelines for the Enforcement of Civil Immigration Law (Sept. 30, 
2021) (“The fact an individual is a removable noncitizen . . . should not alone 
be the basis of an enforcement action against them.”).1  
 
In light of these actions and other recent developments, Texas no longer believes 
Defendants can or will adequately represent the State’s significant interests in this 
case. For these reasons, and as set forth in further detail below, Texas satisfies the 
 
1 https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf. 
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requirements for both intervention as of right and permissive intervention, and its 
motion should be granted.2 
BACKGROUND 
A. Legal Background 
 
Under 42 U.S.C. § 265, the Secretary of HHS possesses broad authority to prom-
ulgate regulations that “prohibit” “introduction of persons . . . from . . . countries 
or places” where the entry of persons from those places would increase the risk that 
a “communicable disease” will be spread to the United States. In March 2020 the 
Centers for Disease Control and Prevention (“CDC”) used this authority to issue 
an interim final rule providing a procedure for the CDC Director to temporarily sus-
pend the introduction of persons from designated foreign countries into the United 
States. Control of Communicable Diseases; Foreign Quarantine: Suspension of In-
troduction of Persons into United States from Designated Foreign Countries or 
Places for Public Health Purposes, 85 Fed. Reg. 16,559 (Mar. 24, 2020). Among 
other things, that interim rule clarified that the bar on “introduction” applies not 
just to those seeking to physically enter the United States, but also those who have 
already “physically crossed a border of the United States and are in the process of 
moving into the interior.” Id. at 16,563. In other words, the CDC established that its 
order did not contain a loophole and that aliens could not circumvent the reach of 
the prohibition merely by setting foot on U.S. soil before a government agent could 
prevent their entrance. 
 
2 Counsel for Plaintiffs-Appellees and Defendants-Appellants indicated to under-
signed counsel that they oppose Texas’ intervention. 
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On September 11, 2020, the CDC finalized the interim regulation. Control of 
Communicable Diseases; Foreign Quarantine: Suspension of Introduction of Per-
sons into United States from Designated Foreign Countries or Places for Public 
Health Purposes, 85 Fed. Reg. 56,424 (Sept. 11, 2020) (codified at 42 C.F.R. 
§ 71.40). The final rule became effective on October 13, 2020. And, on that same 
day, the CDC issued an order suspending the right to introduce aliens migrating 
through Mexico or Canada, concluding that their entrance “creates a serious danger 
of the introduction of COVID-19 into the United States” and that a temporary sus-
pension of their entry is “necessary to protect the public health.” See Order Sus-
pending the Right to Introduce Certain Persons from Countries Where a Quaranti-
nable Communicable Disease Exists, 85 Fed. Reg. 65806, 65,806 (Oct. 16, 2020) 
(“October Order”). Collectively, the final rule and the October Order form a pro-
cess colloquially known as the “Title 42 Process.”  
 
Most recently, the CDC’s October Order was superseded by an order published 
in August that re-affirms that “CDC has determined that an Order under 42 U.S.C. 
265 remains necessary to protect [the United States] during the COVID-19 public 
health emergency” and, as relevant here, continues to prohibit the introduction of 
“non-citizen” “family units” into the United States along the U.S. land and adja-
cent coastal borders. See Public Health Reassessment and Order Suspending the 
Right to Introduce Certain Persons from Countries Where a Quarantinable Com-
municable Disease Exists, 86 Fed. Reg. 42,828 (Aug. 5, 2021) (“August Order”). 
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B. Texas’ Substantial Interest In This Case 
Texas has a unique interest in border enforcement and in the outcome of this 
case. See, e.g., Agreement Between Department of Homeland Security and the State 
of Texas (Jan. 8, 2021) (“Texas . . . is directly and concretely affected by changes to 
[administrative] rules and policies that have the effect of easing, relaxing, or limiting 
immigration enforcement.  Such changes can impact Texas’s law enforcement, 
housing, education, employment, commerce, and healthcare needs and budgets.”).3 
As the August Order recognizes, “the increased movement of typically unvaccinated 
covered noncitizens into the United States” presents an increased risk of outbreaks 
in border facilities, and those outbreaks in turn “increase the serious danger of fur-
ther introduction, transmission, and spread of COVID-19 and variants into the coun-
try.” August Order at 42,834. Texas bears the brunt of harm from these outbreaks, 
and as a result is severely and irreparably harmed in multiple respects: 
 
First, the unmitigated surge of aliens into Texas communities is overwhelming 
multiple Texas counties’ resources. Several local jurisdictions, in fact, have had to 
declare states of disaster because of this surge. See Hidalgo County Judge Richard F. 
Cortez, Declaring a Local State of Disaster at 1 (Aug. 2, 2021) (declaring disaster be-
cause “U.S. Customs and Border Protection is releasing an alarmingly substantial 
number of immigrants into the City of McAllen, Texas, which is within the jurisdic-
tional boundaries of the County of Hidalgo, Texas, including individuals that are 
 
3 
See 
https://thetexan.news/wp-content/uploads/2021/01/21-0020-FINAL-
TEXAS-DHS-SAFE-MOU-1.8.2021.pdf. 
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positive for COVID-19”) (“Hidalgo County Disaster Declaration”);4 Webb County 
Judge Tano E. Tijerina, Corrected Declaration of Local State of Disaster and Order at 1 
(July 21, 2021) (declaring disaster because “Webb County has experienced the orga-
nized transportation of large numbers of individuals (refugees, immigrants and/or 
migrants, a significant portion of whom are unvaccinated, untested for the COVID-
19 virus and COVID positive)”) (“Webb County Disaster Declaration”).5 Hidalgo 
County, for example, was forced to declare a state of disaster because “local Non-
Governmental Organizations, and the City of McAllen are overwhelmed with the 
unanticipated influx of individuals and can no longer adequately feed, house, provide 
medical attention or otherwise accommodate the individuals being released into the 
County.” Hidalgo County Disaster Declaration at 1. The situation was similar in 
Webb County, where “the unanticipated influx of [aliens with high COVID-19 pos-
itivity rates] has overwhelmed local resources and services to the extent that they 
can no longer adequately feed, house, provide medical attention or otherwise accom-
modate these individuals.” Webb County Disaster Declaration at 1; see also Mayor 
Bruno J. Lozano, City of Del Rio Emergency Local Disaster Declaration (Sept. 17, 
2021).6 
 
Second, the health of Texans statewide, and particularly in border communities, 
is jeopardized by the entry of aliens that the Title 42 Process is designed to prohibit. 
 
4 See https://www.hidalgocounty.us/DocumentCenter/View/47015/08022021-
Declaring-A-Local-State-of-Disaster. 
5 https://www.webbcountytx.gov/DisasterDeclarationRIMSJuly202021.pdf. 
6 
https://www.cityofdelrio.com/home/showpublisheddocu-
ment/6590/637674846959119902. 
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As DHS’s declarant in this case explained: the Title 42 Process is necessary “to pre-
vent COVID-19 exposure risks to . . . border communities,” and, as of August 2021, 
“[t]he rates at which encountered noncitizens are testing positive for COVID-19 
have increased significantly.” Defendants’-Appellants’ Motion for Emergency Stay, 
Attachment at Add.66 (Decl. of David Shahoulian) ¶ 13. The CDC’s August Order 
also recognized that “flow of migration directly impacts not only border communi-
ties and regions, but also destination communities and the healthcare resources of 
both.” August Order at 42,835. In short, Texas communities and healthcare re-
sources statewide are being put at risk by alien entries that the Title 42 Process is 
designed to prevent. 
 
Third, Texas experiences multiple significant financial injuries when aliens enter 
the State, particularly those who may be infected with COVID-19. Most specifically, 
aliens seeking medical care cost Texas tens of millions of dollars per year. The De-
partment of Homeland Security pays for alien medical care only while aliens are in 
DHS custody, see 42 C.F.R. § 34.7(a), and once aliens are released it is Texas—
through Emergency Medicaid, see 1 Tex. Admin. Code § 366.903, and other pro-
grams that reimburse healthcare providers for otherwise-unpaid services, see id. §§ 
355.8201–.8202, 355.8212–.8215—that covers medical costs. See State of Texas, 2021 
WL 3603341, at *10 (“Texas is required by federal law to include illegal aliens in its 
Emergency Medicaid Program.”). For Fiscal Year 2019—the last year that a report 
is available—the Texas Health and Human Services Commission estimated that 
Texas spent roughly $80 million on emergency Medicaid services for illegal aliens. 
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See Declaration of Lisa Kalakanis ¶ 7, filed with Appendix to Texas’ Renewed Mo-
tion for Preliminary Injunction, State of Texas v. Biden et al., Case No: 4:21-cv-00579-
P (N.D. Tex. Sept. 8, 2021), ECF No. 69. The COVID-19 pandemic, coupled with 
the surge of aliens this year, is likely to result in a substantially higher number for 
2021. Texas also incurs additional, significant costs associated with alien presence in 
the State in other settings, i.e., with the provision of driver’s licenses. See, e.g., Texas 
v. United States, 809 F.3d 134, 155-56 (5th Cir. 2015). 
C. Procedural History 
Plaintiffs brought suit on behalf of a putative class of alien family units who are 
or will be subjected to the Title 42 Process. As relevant to this appeal, Plaintiffs 
claimed that the CDC has exceeded its Section 265 authority. Plaintiffs, however, 
did not bring this suit when the CDC adopted its interim final rule in March 2020, 
nor even its final rule, or October Order. Rather, Plaintiffs filed their lawsuit at the 
eleventh hour of the previous administration—on January 12, 2021. Instead of fully 
litigating this suit, Plaintiffs and the new administration rapidly agreed to engage in 
settlement discussions, and the case was held in abeyance. See Feb. 12 and July 19 
Minute Orders. In the meantime, and to ensure that its own interests in the Title 42 
Process were vindicated, Texas filed suit in the Northern District of Texas challeng-
ing Defendants’ failure to fully use their Title 42 Process authority. See State of Texas 
v. Biden et al., Case No. 4:21-CV-579-P (N.D. Tex filed Apr. 22, 2021). 
The parties in this case eventually “reached an impasse” in their negotiations, 
see Aug. 2 Minute Order, and then proceeded with preliminary injunction briefing. 
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On September 16, the district court granted provisional class certification and a class-
wide preliminary injunction. The crux of the district court’s merits analysis was that 
42 U.S.C. § 265 does not authorize the government to expel aliens once they have 
set foot into the United States because—in the district court’s view—“[e]xpelling 
persons” who have set foot in U.S. territory is “entirely different from” the statu-
tory authorization for the government to “prohibit . . . the introduction of” persons. 
Memorandum Opinion at 41. In other words, although it is clear that the statute per-
mits Defendants to prevent aliens from entering the country, the district court con-
cluded that aliens could end-run that bar if they are enterprising enough to set foot 
on U.S. soil before they are intercepted.  
Defendants filed their appeal on September 17. On September 30 this Court 
stayed the preliminary injunction and entered an expedited merits briefing schedule.  
LEGAL STANDARD 
 
Appellate courts judge motions to intervene under Federal Rule of Civil Proce-
dure 24. See Mass. Sch. of Law v. United States, 118 F.3d 776, 779 (D.C. Cir. 1997) 
(“Although [FRCP 24] nominally appl[ies] only to procedure in the United States 
district courts, we apply [it] . . . to interventions solely for purposes of appeal” (quo-
tations omitted)). Under Rule 24(a), applicants are entitled to intervention as of right 
if they have Article III standing and then satisfy a four-factor test, showing (1) the 
motion to intervene is timely; (2) the applicant claims a legally protected interest; 
(3) the action, as a practical matter, impairs or impedes that interest; and (4) the 
applicant’s interest cannot adequately be represented by another party in the action. 
See Crossroads Grassroots Policy Strategies v. FEC, 788 F.3d 312, 316, 320 (D.C. Cir. 
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2015). Alternatively, permissive intervention is proper under Rule 24(b)(1)(B) “[o]n 
timely motion” to “anyone . . . [with] a claim or defense that shares with the main 
action a common question of law or fact.” Fed. R. Civ. P. 24(b)(1)(B). 
ARGUMENT 
I. The Court Should Grant Intervention As Of Right 
A. Texas Has Standing 
Texas has standing, for multiple reasons.  
A prospective intervenor-defendant has standing if it would experience injury in 
the event the plaintiff’s suit succeeds. See Crossroads, 788 F.3d at 316-17. Texas is 
already experiencing multiple injuries because of Defendants’ inadequate enforce-
ment at the border as outlined supra at 7-10, and those injuries would logically esca-
late if the Plaintiffs succeed here and enjoin use of the Title 42 Process against family 
units. In that event, Texas would suffer direct economic injury through increased 
expenditures on medical care for aliens infected with COVID-19, through the provi-
sion of driver’s licenses to aliens, and because of a range of other potential expendi-
tures. See supra at 7-10; Wyoming v. Oklahoma, 502 U.S. 437, 448-49 (1992) (direct 
effect on state’s fisc establishes Article III injury); Air All. Houston v. EPA, 906 F.3d 
1049, 1059-60 (D.C. Cir. 2018) (“Monetary expenditures to mitigate and recover 
from harms that could have been prevented [under a particular regulatory approach] 
are precisely the kind of ‘pocketbook’ injury that is incurred by the state itself” and 
that establishes standing); see also Texas, 809 F.3d at 155-56.   
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In addition, Texas would suffer a direct injury in this suit if Plaintiffs succeed 
because that would invariably result in increased COVID-19 infection, as Defendants 
themselves have recognized. See supra at 6 (Defendants’ recognition that Title 42 
Process is necessary to prevent greater COVID-19 infection). This Court has con-
cluded that states suffer concrete and imminent injury from regulatory action that 
allows greater pollutant emissions because they adversely impact air quality. See Del. 
Dep’t of Nat. Res. v. EPA, 785 F.3d 1, 10 (D.C. Cir. 2015). Likewise here, Texas would 
suffer injury if COVID-19 positive aliens in the state increase because that would 
plainly adversely impact Texans’ health. See also supra at 8-9 (states of disaster de-
clared in certain Texas counties).  
For similar reasons, Texas additionally has parens patriae standing to protect the 
“health and well-being . . . of its residents.” Alfred L. Snapp & Son v. P.R. ex rel. Ba-
rez, 458 U.S. 592, 607 (1982). If Plaintiffs’ suit succeeds and Defendants can no 
longer use the Title 42 Process to expel alien family units—a substantial portion of 
whom have been infected with COVID-19—it will result in greater harm to the 
health and well-being of Texas residents through their own increased exposure to 
COVID-19. 
B. Texas’ Motion Is Timely 
Texas’ motion is timely because it is being filed shortly after this appeal was in-
itiated and shortly after circumstances made it apparent that there is a substantial 
likelihood that Defendants will not adequately represent Texas’ interests. 
Under Federal Rule of Appellate Procedure 15(d), intervention is timely if it is 
within 30 days of case opening in the court of appeals. And here Texas has moved to 
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14 
intervene within 24 days of the notice of appeal. While Rule 15(d) technically gov-
erns only petitions for review of administrative action, that is a distinction with no 
material difference here where this appeal concerns an administrative law question 
and turns on legal questions about the statute and administrative orders that this 
Court will review with “no particular deference to the District Court’s view.” Eagle 
Pharms. v. Azar, 952 F.3d 323, 330 (D.C. Cir. 2020). In this context, Texas’ absence 
in the district court proceedings is immaterial, and its motion to intervene within 30 
days of the filing of appeal should be treated as presumptively timely, just as if it were 
made under Rule 15(d). 
Texas’ motion is also timely even taking into account when this case was filed in 
district court. “[T]imeliness is to be judged in consideration of all the circum-
stances,” Smoke v. Norton, 252 F.3d 468, 471 (D.C. Cir. 2001), and “measuring the 
length of time passed is not in itself the determinative test,” Roane v. Leonhart, 741 
F.3d 147, 151 (D.C. Cir. 2014). Instead, and regardless of the time that has elapsed 
since case initiation, a motion to intervene is timely if filed when “the potential in-
adequacy of representation came into existence.” Smoke, 252 F.3d at 471; see also 
Smith v. Marsh, 194 F.3d 1045, 1052 (9th Cir. 1999). And here the potential for De-
fendants’ representation to be inadequate has recently come to the fore in light of 
the Defendants’ representations in Texas’ other litigations, see supra at 3-4, and be-
cause of Defendant Mayorkas’s recent promulgation of final guidance flatly stating 
that the Department of Homeland Security has no intention of removing millions of 
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15 
noncitizens from this country. See Mayorkas Mem., supra, at 2 (“The fact an indi-
vidual is a removable noncitizen . . . should not alone be the basis of an enforcement 
action against them.”). 
In addition, this motion is timely by any standard because, if granted, it could 
not plausibly prejudice the parties. Timeliness is not a requirement for its own sake, 
see 7C Charles Alan Wright et al., Federal Practice and Procedure § 1916, at 532 (3d 
ed. 2007) (“The timeliness requirement is not intended as a punishment for the di-
latory . . . .”)—instead, it is designed to “prevent[] potential intervenors from un-
duly disrupting litigation, to the unfair detriment of the existing parties.” Roane, 741 
F.3d at 151. There will be no disruption here. Texas is prepared to be bound both by 
this Court’s September 30, 2021 scheduling order and the local rules for the filing of 
briefs. That would mean Texas’ opening brief in support of appellants would be due 
October 28—the same day that amicus briefs supporting appellants are already due. 
See D.C. Cir. R. 28(d)(3) (intervenor briefs filed “in accordance with the time limi-
tations” for amici). And Texas’ reply would be due “at the time the appel-
lant[s’] . . . reply is due,” D.C. Cir. R. 28(d)(5)—on November 29. Texas does not 
at this time intend to make any other substantive filings before oral argument, and its 
willingness to be bound by the existing scheduling order eliminates the possibility of 
prejudice to the parties.7  
 
7 Texas recognizes that intervention on appeal is rare. See Amalgamated Transit Un-
ion Int’l v. Donovan, 771 F.2d 1551 (D.C. Cir. 1985) (emphasis added). But the main 
intervention-on-appeal precedent in this Circuit denied intervention where it was 
sought after the Court “ha[d] decided [the] case.” Id. at 1553. On the other hand, the 
Court indicated that the party “could have moved to intervene when [appellant] ap-
pealed,” id. at 1554, which is exactly what Texas has done here. In any event, the 
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C. Texas Has Significant Protectable Interests Directly Affected By 
This Litigation 
As demonstrated supra at 7-10, Texas has significant protectable interests di-
rectly affected by Plaintiffs’ challenge to the Title 42 Process. Multiple of its coun-
ties have declared states of disaster because of the influx of aliens with COVID-19. 
The health of its residents is, by the Defendants’ own admission, compromised by 
the surge of aliens with COVID-19. And Texas endures multiple harms to the state 
fisc by trying to address this situation. In addition, this intervention factor is primar-
ily designed to facilitate the “disposing of lawsuits by involving as many apparently 
concerned persons as is compatible with efficiency and due process.” Nuesse v. 
Camp, 385 F.2d 694, 700 (D.C. Cir. 1967) (state banking commissioner could inter-
vene as of right in action by bank seeking to enjoin federal Comptroller of the Cur-
rency from allowing national bank to open a branch in the vicinity of state bank). 
Texas’ presence in this appeal will advance that goal. 
D. Disposition Of This Action May Impair Or Impede Texas’ Ability 
To Protect Its Interests 
This action may also impair or impede Texas’ ability to protect its interests be-
cause if Plaintiffs succeed it will automatically harm Texas’ interest in protecting the 
health and well being of its citizens and the public fisc. See supra at 7-10. Plaintiffs are 
seeking to enjoin application of the Title 42 Process to alien family units. This would 
result in a greater number of alien family units with COVID-19 being released into 
 
circumstances of this case satisfy any standard for intervention. See supra at 3-4 (ex-
plaining the multitude of very recent actions Defendants have taken suggesting they 
will not adequately represent Texas’ interests). 
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17 
the State of Texas, to the State’s obvious detriment. And when a movant benefits 
from a regulatory scheme, invalidation of that scheme would necessarily impair the 
movant’s interests. See, e.g., Wash. All. of Tech. Workers v. U.S. Dep’t of Homeland 
Sec., 395 F. Supp. 3d 1, 20 (D.D.C. 2019); Waterkeeper All., Inc. v. Wheeler, 330 
F.R.D. 1, 8 (D.D.C. 2018); Env’t. Def. Fund, Inc. v. Costle, 79 F.R.D. 235, 242 
(D.D.C. 1978). That easily meets and exceeds the low “practical consequences” 
showing that Texas must make to show that this action may impair its ability to pro-
tect its interests. See NRDC v. Costle, 561 F.2d 904, 909 (D.C. Cir. 1977). In addition, 
Texas cannot be denied intervention on the basis that it could challenge any new reg-
ulatory framework that Defendants might promulgate if Plaintiffs successfully enjoin 
action under the Title 42 Process. See id. at 909 (rejecting such an argument).  
E. Defendants Do Not Adequately Represent Texas’ Interests 
Finally, Defendants do not adequately represent Texas’ interests in this case.  
Rule 24(a)’s inadequate representation requirement is “not onerous.” Fund for 
Animals Inc. v. Norton, 322 F.3d 728, 735 (D.C. Cir. 2003). “[T]he burden of making 
that showing should be treated as minimal.” Trbovich v. United Mine Workers of Am., 
404 U.S. 528, 538 n.10 (1972). Movants “ordinarily should be allowed to intervene 
unless it is clear that the party will provide adequate representation for the absen-
tee.” United States v. Am. Tel. & Tel. Co., 642 F.2d 1285, 1293 (D.C. Cir. 1980); 
Smuck v. Hobson, 408 F.2d 175, 181 (D.C. Cir. 1969) (burden on parties opposing 
intervention to demonstrate existing representation is adequate). 
It is well-established that federal “governmental entities do not adequately rep-
resent the interests of aspiring intervenors.” Fund for Animals, 322 F.3d at 736-37 & 
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18 
n.9 (collecting cases). That is particularly true in immigration matters, where the 
federal government has repeatedly used settlements to set national policy on terms 
that intervenors with different interests likely would not have consented to. See supra 
at 2-3.  
 
As noted, the likelihood that Defendants may settle litigation over the Title 42 
Process on terms that may likewise be disadvantageous to Texas (or take other action 
that would injure Texas) has increased significantly in recent weeks. Defendants re-
cently represented to a federal court that they are working with NGOs to establish 
exemptions to the Title 42 Process and that they are not required to do anything about 
COVID-19 alien entries. See supra at 3-4. And less than two weeks ago Defendant 
Mayorkas promulgated guidance directing his subordinates not to remove millions 
of aliens illegally present in Texas and the broader United States. There is a palpable 
prospect that Defendants might resolve this litigation in a way that would harm 
Texas—whether through a settlement, failure to pursue further appeal, or other-
wise. 
 
The Defendants also do not adequately represent any of the specific State inter-
ests that Texas seeks to protect in this action. The Defendants do not adequately 
represent Texas’ state fisc. See supra at 9-10 (explaining harm to state fisc if Plaintiffs 
succeed). Nor do Defendants adequately represent the Texas border communities 
that are experiencing crisis because of the influx of aliens infected with COVID-19. 
And Defendants do not adequately represent the health and well-being of Texas res-
idents more broadly. 
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II. In The Alternative, The Court Should Permit Permissive Intervention
In the alternative, and for substantially similar reasons as laid out above, Texas
satisfies the prerequisites for permissive intervention. An applicant for permissive 
intervention should present the Court with “(1) an independent ground for subject 
matter jurisdiction; (2) a timely motion; and (3) a claim or defense that has a question 
of law or fact in common with the main action.” EEOC v. Nat’l Children’s Ctr., Inc., 
146 F.3d 1042, 1046 (D.C. Cir. 1998).  
First, Texas has an independent ground for subject matter jurisdiction because 
this action presents a federal question. See Wright, et al., supra, § 1917 (“[T]he need 
for independent jurisdictional grounds is almost entirely a problem of diversity liti-
gation. In federal-question cases there should be no problem of jurisdiction with re-
gard to an intervening defendant.”). 
Second, Texas’ motion is also timely, as explained supra at 14-16. 
Third, Texas’ position that 42 U.S.C. § 265 authorizes Defendants to expel al-
ien family units has perfect overlap with the issues presented in this appeal and so 
easily satisfies the requirement to show a “common question of law or fact” with the 
main action. See Nat’l Children’s Ctr., 146 F.3d at 1047 (noting courts “afford[] this 
requirement considerable breadth”).   
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CONCLUSION 
 
For the foregoing reasons, the State of Texas respectfully requests that the Court 
grant its motion to intervene as of right under Rule 24(a) or, in the alternative, for 
permissive intervention under Rule 24(b). 
 
If granted, Texas will, in accordance with this Court’s September 30 briefing 
schedule and the local rules, file its opening brief in support of appellants on October 
28 and its reply brief on November 29.  
Respectfully submitted. 
Ken Paxton 
Attorney General of Texas 
Brent Webster 
First Assistant Attorney General 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1896 
Fax: (512) 370-9191 
Judd E. Stone II 
Solicitor General 
/s/ Ryan S. Baasch 
Ryan S. Baasch 
Assistant Solicitor General 
ryan.baasch@oag.texas.gov 
Leif A. Olson* 
Special Counsel 
Counsel for Proposed Intervenor- 
Defendant the State of Texas 
* Application for admission
forthcoming
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CERTIFICATE AS TO PARTIES AND AMICI* 
In accordance with D.C. Circuit Rules 27(a)(4) and 28(a)(1)(A), Proposed In-
tervenor-Defendant the State of Texas certifies as follows: 
Except for Proposed Intervenor-Defendant the State of Texas, all parties, inter-
venors, and amici appearing before the district court and in this court are listed in 
the Defendants-Appellants Motion for Stay Pending Appeal and for an Administra-
tive Stay Pending Disposition of the Stay Motion.   
/s/ Ryan S. Baasch
Ryan S. Baasch 
* As a governmental party, Texas is not subject to the requirements of Federal Rule
of Appellate Procedure 26.1.
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CERTIFICATE OF COMPLIANCE 
The foregoing motion complies with Federal Rules of Appellate Procedure 
27(d)(1)(E) and 32(a)(5) and (6) because it is written in 14-point Equity typeface. It 
complies with Federal Rules of Appellate Procedure 27(d)(2)(A) and 32(f) and (g) 
because it contains 4,899 words, excluding exempted portions, according to Mi-
crosoft Word. 
/s/ Ryan S. Baasch
Ryan S. Baasch 
CERTIFICATE OF SERVICE 
 
On October 11, 2021, the foregoing motion and certificate as to parties and amici 
were served via CM/ECF on all registered counsel. 
/s/ Ryan S. Baasch
Ryan S. Baasch 
USCA Case #21-5200      Document #1917572            Filed: 10/11/2021      Page 28 of 28

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