Appellees' Opposition to Texas Motion to Intervene — Huisha-Huisha v. Mayorkas

Record facts

Full text

ORAL ARGUMENT NOT YET SCHEDULED 
__________________________________________________________________ 
 
No. 21-5200 
__________________________________________________________________ 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
___________________________________________________________________ 
 
NANCY GIMENA HUISHA-HUISHA, on behalf of 
herself and others similarly situated, et al., 
 
 
 
 
 
 
 
Plaintiffs-Appellees, 
v. 
 
ALEJANDRO MAYORKAS, et al., 
 
 
 
 
 
 
 
Defendants-Appellants. 
________________________________________________________________________________________ 
 
On Appeal from the United States District Court  
for the District of Columbia 
No. 1:21-cv-100 
Hon. Emmet G. Sullivan  
________________________________________________________________________________________ 
 
PLAINTIFFS-APPELLEES’ OPPOSITION TO THE STATE OF TEXAS’ 
MOTION TO INTERVENE AS INTERVENOR-DEFENDANT 
_______________________________________________________________ 
 
Stephen B. Kang 
Cody Wofsy 
Morgan Russell 
My Khanh Ngo  
American Civil Liberties Union 
Foundation, Immigrants’ Rights 
Project 
39 Drumm Street 
San Francisco, CA 94111 
(415) 343-0774 
 
 
 
 
Lee Gelernt 
Omar Jadwat 
Daniel A. Galindo 
Ming Cheung 
David Chen 
American Civil Liberties Union 
Foundation, Immigrants’ Rights 
Project 
125 Broad Street, 18th Floor 
New York, NY 10004 
(212) 549-2600 
lgelernt@aclu.org 
   Attorneys for Plaintiffs-Appellees 
 
 (Additional Counsel on Next Page) 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 1 of 25

Andre Segura 
Kathryn Huddleston 
Brantley Shaw Drake 
American Civil Liberties Union 
Foundation of Texas, Inc. 
5225 Katy Freeway, Suite 350 
Houston, Texas 77007 
(713) 942-8146 
 
Karla M. Vargas 
Texas Civil Rights Project 
1017 W. Hackberry Ave. 
Alamo, Texas 78516 
(956) 787-8171 
 
Jamie Crook 
Blaine Bookey 
Karen Musalo 
Neela Chakravartula 
Center for Gender &  
Refugee Studies 
200 McAllister Street 
San Francisco, CA 94102 
(415) 565-4877 
Robert Silverman 
Irit Tamir 
Oxfam America 
226 Causeway Street, Suite 500 
Boston, MA 02115 
(617) 482-1211 
 
Scott Michelman  
Arthur B. Spitzer 
American Civil Liberties Union 
Foundation of the District of 
Columbia 
915 15th Street, NW, 2nd floor 
Washington, D.C. 20005 
(202) 457-0800 
 
Tamara F. Goodlette 
Refugee and Immigrant Center for 
Legal Education and Legal 
Services (RAICES) 
802 Kentucky Avenue 
San Antonio, TX 78201 
(210) 960-3206 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 2 of 25

 
 
1 
INTRODUCTION 
The Court should reject the State of Texas’ extraordinary request to 
intervene in this appeal where it declined to move to intervene before the District 
Court despite ample opportunity.  Texas’ motion comes nine months after 
Plaintiffs filed suit below; nearly six months after Texas filed its own separate suit 
concerning the Title 42 Process against the Government in the Northern District of 
Texas; and more than two months after the parties in this case reached an impasse 
in their negotiations and resumed their district court litigation on Plaintiffs’ motion 
for a preliminary injunction.   
Texas asserts that its untimely intervention is needed based on speculation 
that Defendants might at some point in the future decide to settle this suit in a 
manner that would displease it.  Motion (“Mot.”) 2-4, 18.  Despite this purported 
concern, Texas chose not to follow the normal course of moving to intervene in the 
District Court, even during the more than five months the parties were actually and 
publicly engaged in settlement discussions—including for three months after Texas 
had filed its own separate Title 42 litigation against Defendants.   
Since that time, the parties have resumed active litigation and Defendants 
have vigorously defended their claimed authority to summarily expel asylum-
seeking families under 42 U.S.C. § 265, most notably by successfully seeking an 
emergency stay of the District Court’s preliminary injunction pending this appeal.  
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 3 of 25

 
 
2 
Moreover, in claiming that it seeks to intervene to protect the wellbeing of its 
communities and healthcare resources, Texas parrots and even explicitly quotes 
Defendants’ own statements purporting to vindicate those same concerns.  Mot. 1, 
7, 9.  Texas’ stated legal position—“that 42 U.S.C. § 265 authorizes Defendants to 
expel alien family units”—aligns entirely with the position advanced by 
Defendants.  Mot. 19.  In short, Texas has nothing to add to this case. 
Even had Texas followed the proper course and sought to intervene in the 
District Court, its motion would have been untimely and otherwise baseless under 
Federal Rule of Civil Procedure 24.  By declining to do so, and instead taking the 
extraordinary step of moving to intervene on appeal in the first instance, Texas has 
forgone any claim of intervention as of right.  Under this Court’s longstanding 
precedent, Texas can now prevail only if it demonstrates “exceptional 
circumstances supported by imperative reasons to justify [its] motion for leave to 
intervene.”  Amalgamated Transit Union Int’l, AFL-CIO v. Donovan, 771 F.2d 
1551, 1553 (D.C. Cir. 1985).  Texas falls far short of satisfying that demanding 
standard.    
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 4 of 25

 
 
3 
ARGUMENT 
I. 
Texas Fails To Demonstrate Exceptional Circumstances Supported 
By Imperative Reasons Warranting Its Intervention On Appeal 
After Its Failure To Seek Intervention Below. 
 
There is no intervention as of right when intervention is first sought on 
appeal.  “No provision in the Federal Rules of Appellate Procedure provides for 
intervention on appeal, except in proceedings to review agency action” by a 
petition for review under Federal Rule of Appellate Procedure 15, which does not 
apply here.  Amalgamated Transit Union, 771 F.2d at 1553 n.3.  “Federal Rule[] of 
Civil Procedure Rule 24 . . . only applies to intervention at the district court level.”  
Id.  Accordingly, “courts of appeals have developed their own standards of 
intervention in order to take account of the unique problems caused by intervention 
at the appellate stage.”  Id.   
This Court, following other Circuits, “allow[s] intervention at the appellate 
stage where none was sought in the district court ‘only in an exceptional case for 
imperative reasons.’”  Id. at 1552 (quoting Landreth Timber Co. v. Landreth, 731 
F.2d 1348, 1353 (9th Cir. 1984), rev’d on other grounds, 471 U.S. 681 (1985)); 
accord, e.g., Richardson v. Flores, 979 F.3d 1102, 1104 (5th Cir. 2020); Craig v. 
Simon, 980 F.3d 614, 618 n.3 (8th Cir. 2020); Pub. Serv. Co. of New Mexico v. 
Barboan, 857 F.3d 1101, 1113 (10th Cir. 2017); Pitts v. Thornburgh, No. 88-5058, 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 5 of 25

 
 
4 
2003 WL 21384601, at *1 (D.C. Cir. May 28, 2003) (per curiam) (unpublished); 
Hall v. Holder, 117 F.3d 1222, 1231 (11th Cir. 1997). 
Texas fails to acknowledge, let alone satisfy, this exceedingly high standard.  
Texas instead recognizes only that “intervention on appeal is rare.”  Mot. 15 n.7 
(citing Amalgamated Transit Union, 771 F.2d 1551).  But such intervention is rare 
precisely because it is “reserved for truly exceptional cases.”  Richardson, 979 
F.3d at 1104.1  Indeed, Texas has not identified any case in which this Court has 
granted intervention on appeal under the demanding “exceptional circumstances” 
standard. 
This Court has previously noted three considerations relevant to assessing 
whether there were “exceptional circumstances supported by imperative reasons to 
justify [a] motion for leave to intervene” on appeal in the first instance: (1) whether 
                                                 
1 The “steep threshold for allowing intervention on appeal” “prevent[s] litigants 
from using procedural gamesmanship to skirt unfavorable standards of review.”  
Richardson, 979 F.3d at 1105.  For instance, in reviewing a district court’s denial 
of intervention as of right, this Court reviews legal issues de novo; applies the clear 
error standard to factfinding; and addresses for abuse of discretion all “issues that 
‘involve a measure of judicial discretion.’”  Yocha Dehe v. United States Dep't of 
the Interior, 3 F.4th 427, 430 (D.C. Cir. 2021) (quoting Fund For Animals, Inc. v. 
Norton, 322 F.3d 728, 732 (D.C. Cir. 2003)).  “If [the Court] analyzed motions to 
intervene on appeal using the same framework district courts use to address 
motions to intervene there, litigants would effectively have de novo review of their 
intervention motion” in all respects.  Richardson, 979 F.3d at 1105.  “[A]llowing 
intervention on appeal only ‘in an exceptional case for imperative reasons’ is 
necessary to prevent such procedural gamesmanship.”  Id. (quotation marks and 
citation omitted).   
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 6 of 25

 
 
5 
the prospective intervenor was “the real party in interest”; (2) whether an existing 
party is an “adequate representative of [the prospective intervenor’s] interest” in 
the case; and (3) the prospective intervenor’s “explanation . . . for its failure to 
make a request for intervention at the District Court level.”  Amalgamated Transit 
Union, 771 F.2d at 1553-54; see also Richardson, 979 F.3d at 1105 (looking to 
similar considerations).  Here, each consideration weighs heavily against Texas.   
First, Texas is not the actual party in interest, as it did not promulgate and 
does not administer the Title 42 Process.  In Amalgamated Transit Union, a local 
transportation authority sought to intervene in an appeal brought by the plaintiff 
labor union against the Secretary of Labor, challenging the Secretary’s 
determination that the transportation authority was complying with a labor-related 
provision of federal law and thus eligible for federal funding.  771 F.2d at 1551, 
1553-54.  This Court explained that, as the federal officer whose action was being 
challenged, the Secretary of Labor was “the real party in interest” and not the 
proposed intervenor.  Id. at 1553.  That case “involved statutory limits on the 
Secretary’s discretion in the certification of labor protective agreements,” and it 
was the lawfulness of the Secretary’s “conduct [which was] on trial.”  Id. at 1553-
54.  Here, as in Amalgamated Transit Union, it is the lawfulness of the federal 
defendants’ action that is in dispute.  As Texas acknowledges, the central issue in 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 7 of 25

 
 
6 
this appeal is whether “42 U.S.C. § 265 authorizes Defendants to expel alien 
family units.”  Mot. 19.  No conduct by Texas is at issue.   
Second, Texas makes no exceptional showing of inadequate representation 
of its interests.  See Amalgamated Transit Union, 771 F.2d at 1553-54.  Texas 
acknowledges that just over two months ago, Defendants issued a new Title 42 
Order “that re-affirms that . . . [‘]42 U.S.C. 265 remains necessary to protect [the 
United States] during the COVID-19 public health emergency’ and . . . continues 
to prohibit the introduction of ‘non-citizen’ ‘family units’ into the United States.”  
Mot. 6 (quoting 86 Fed. Reg. 42,828 (Aug. 5, 2021)).  In attempting to articulate 
its own supposedly “unique interest” in protecting “border communities” and their 
“healthcare resources,” Mot. 6, Texas notably resorts to quoting from both the 
latest Title 42 Order and Defendants’ latest declaration filed below, id. at 9 
(quoting 86 Fed. Reg. at 42,835, and Decl. of David Shahoulian).  These interests 
are identical to those Defendants assert in defending their purported statutory 
authority to carry out the Title 42 Process.  See, e.g., Defendants-Appellants’ 
Motion for Emergency Stay Pending Appeal 1-3, 18-19, 21-22. 
Indeed, far from “disclaim[ing] any interest” in the dispute, Richardson, 979 
F.3d at 1105, Defendants swiftly appealed the District Court’s preliminary 
injunction order, obtained an emergency stay of the injunction, and now seek to 
vacate that injunction.  Texas claims that its residents’ health and its healthcare 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 8 of 25

 
 
7 
resources may be impacted if Defendants’ authority to apply the Title 42 Process to 
families is enjoined, and speculates that Defendants may not adequately defend 
that authority at some later point in this litigation.  Mot. 7-10, 17-18.  But this 
Circuit rejected much the same argument in Amalgamated Transit Union, 
explaining that such an “alleged conflict of interest” was “hardly exceptional” and 
would “exist in any appeal to which an agency is a party and a third-party faces 
some liability or loss of funds if the agency does not prevail.”  771 F.2d at 1554 
(emphasis in original).  Critically, the Court there also pointed out that if the 
prospective intervenor “wishes to challenge the future exercise of the Secretary’s 
discretion, it may do so by bringing an action against the Secretary, not by 
intervening in this case.”  Id. (emphasis omitted).  Here, Texas already chose to 
contest Defendants’ management of the Title 42 Process by bringing a separate 
action in a different district, rather than by seeking to intervene in the District 
Court below.    
Moreover, Texas’ assertions that its interests are inadequately represented 
are belied by the total overlap of its and Defendants’ position.  In Amalgamated 
Transit Union, the prospective intervenor sought to intervene to file a petition for 
rehearing, but acknowledged that the Secretary of Labor had already done so, and 
the arguments it hoped to raise in its petition were already “reflected in briefs filed 
by . . . [an] amicus curiae.”  771 F.2d at 1553 n.4.  The Court reasoned that both 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 9 of 25

 
 
8 
points “directly contradict[ed] [the prospective intervenor’s] claim that its position 
is not now adequately represented.”  Id.  The same is true here, where Texas 
acknowledges that its “position that 42 U.S.C. § 265 authorizes Defendants to 
expel alien family units has perfect overlap with the issues presented in this 
appeal.”  Mot. 19 (emphasis added).  Thus, as with the failed intervenor in 
Amalgamated Transit Union, Texas seeks the extraordinary measure of 
intervention on appeal to urge precisely the same outcome, based on the same legal 
position, that the named Defendants already advance.  See also Pub. Serv. Co. of 
New Mexico, 857 F.3d at 1113-14 (“When the applicant and an existing party share 
an identical legal objective, we presume that the party’s representation is 
adequate.”).     
Third, Texas has failed to offer any compelling “explanation . . . for its 
failure to make a request for intervention at the District Court level.”  
Amalgamated Transit Union, 771 F.2d at 1553-54.  Plaintiffs filed their 
preliminary injunction motion in February 2021, putting Texas on notice over eight 
months ago that the District Court might prohibit the application of the Title 42 
Process to noncitizen families.  Cf. Richardson, 979 F.3d at 1104 (intervention on 
appeal potentially permissible “where [movant’s] lack of timely intervention below 
may be justified by the district court’s action without notice”) (quoting United 
States v. Bursey, 515 F.2d 1228, 1238 n.24 (5th Cir. 1975)).   
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 10 of 25

 
 
9 
Texas does not dispute that it has long been on notice, but it asserts that “the 
potential for Defendants’ representation [of its interests] to be inadequate has 
[only] recently come to the fore.”  Mot. 14.  Texas’ purported concern that 
“Defendants will . . . fail[] to pursue an appeal” is baseless.  Mot. 3.  Defendants 
have just successfully sought a stay before this Court, and Texas seeks to intervene 
on appeal.  Texas also claims that “the likelihood that Defendants may settle 
litigation over the Title 42 Process on terms that may likewise be disadvantageous 
to Texas . . . has increased significantly in recent weeks.”  Mot. 18.  That assertion 
is not credible in light of the history of this litigation.   
The parties in this case agreed via joint motion in late February 2021 to hold 
the preliminary injunction motion in abeyance to “explore whether it may be 
possible to resolve or narrow the dispute at issue in this case.”  See Dkt. 87 (Feb. 
23, 2021).  Thereafter, the parties periodically filed public joint requests to hold the 
preliminary injunction proceedings while negotiations continued.  See Dkt. 99, 
100, 102, 103, 105-111.  More than five months later, on August 2, 2021, the 
parties publicly filed a joint motion to reset the briefing schedule on the 
preliminary injunction motion, stating that their “discussions . . . ha[d] reached an 
impasse,” and proposing a schedule for resolution of the preliminary injunction 
motion.  Dkt. 112 at 2 (Aug. 2, 2021).  In response to the District Court’s offer of 
mediation, the parties stated that they had “engaged in extensive negotiations for 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 11 of 25

 
 
10
about six months” and “worked diligently to try to resolve the dispute,” such that 
the impasse would not benefit from further negotiation.  Dkt. 115 (Aug. 4, 2021).  
The District Court briefing was completed on August 11, 2021.  Dkt. 118. 
At no point during the months when the parties’ negotiations were ongoing 
did Texas move to intervene or otherwise assert its purported concern about a 
possible settlement.2  See Pub. Serv. Co. of New Mexico, 857 F.3d at 1113 (holding 
that the “exceptional case for imperative reasons” standard was unmet where the 
proposed appellate intervenor “had ample opportunity to be heard at the district 
court and declined to do so”).  In the absence of any “exceptional circumstances 
supported by imperative reasons” excusing Texas’ decision not to seek 
intervention below, its request to intervene on appeal in the first instance must be 
denied.  See Amalgamated Transit Union, 771 F.2d at 1553. 
II. 
Texas’ Motion Also Fails Under the Standard For Intervention As Of 
Right Under Rule 24(a). 
 
Even were the Court to apply the standard for intervention as of right in 
district court under Federal Rule of Civil Procedure 24(a), Texas has not 
demonstrated its entitlement to intervene.  To prevail, Texas must demonstrate 
                                                 
2 As Texas acknowledges, it filed its own separate lawsuit challenging Defendants’ 
choice not to apply Title 42 to certain children and families.  See Complaint, Texas 
v. Biden, No. 4:21-cv-579, ECF No. 1 ¶¶ 120–22 (N.D. Tex. Apr. 22, 2021); see 
also Mot. 3-4 (acknowledging this separate suit).  Plaintiffs’ motion for a 
preliminary injunction in this case had then been held in abeyance for two months. 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 12 of 25

 
 
11
Article III standing and “must satisfy all four elements” of Rule 24(a): “timeliness, 
interest, impairment of interest, and adequacy of representation.”  Jones v. Prince 
George’s Cty., Maryland, 348 F.3d 1014, 1017, 1019 (D.C. Cir. 2003).  Due to the 
same deficiencies identified above, Texas fails to satisfy these requirements. 
A. Texas Lacks Standing Or Any Significant Protectable Interests 
Affected By This Case. 
 
Standing.  Texas founds its theories for standing on the assumption that 
enjoining the Title 42 Process as to Class Members will cause migrant families to 
enter the State in increasing numbers, thereby bringing COVID-19 into the State.  
Mot. 7-10 (citing purported harms arising from “surge of [noncitizens] into 
Texas”).  As a threshold matter, these alleged interests are all ones that Defendants 
are vigorously asserting.  See supra Part I; Huisha-Huisha v. Mayorkas, __ F. 
Supp. 3d __, 2021 WL 4206688, at *17 (D.D.C. Sept. 16, 2021) (addressing 
Defendants’ assertions that injunction would create “pull factor” and “increase the 
risk of COVID-19 transmission”).  The striking similarity between Texas’s 
asserted interests and those of Defendants only underscores why the State’s 
extraordinary intervention request must be denied.   
In any event, Texas’ claimed injuries do not withstand scrutiny.  Texas 
claims that it experiences “multiple significant financial injuries” when noncitizens 
enter the United States, Mot. 9-10, including “direct economic injury through 
increased expenditure on medical care,” id. at 12.  Relatedly, Texas contends that 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 13 of 25

 
 
12
the preliminary injunction would “invariably result in increased COVID-19 
infection” in the State.  Mot. 13; id. 8.  These fact-based claims are subject to 
serious dispute, and Texas’s unproven assertions cannot supply a basis for 
intervention—especially for the first time on appeal.  See Dkt. 118-18 ¶¶ 20-22 
(explaining that average of 361,000 people enter United States from Mexico via 
ports of entry daily, whereas only around 2,500 asylum-seeking family members 
are apprehended daily); Dkt. 118 at 20 (citing declarations showing that only 
1.14% of noncitizens in Mexico requesting exemptions from Title 42 tested 
positive for COVID-19); Order, United States v. Texas, No. 3:21-cv-173, ECF No. 
52 at 18 (W.D. Tex. Aug. 26, 2021) (“[R]ecent data shows that migrants generally 
test positive at similar or lower rates than Americans living in the counties where 
they are tested.”).3  See also Commonwealth v. United States Dep't of Educ., 340 F. 
Supp. 3d 7, 17 (D.D.C. 2018) (explaining that “increase in the payment of 
government benefits, like a decrease in tax revenues” is “generalized grievance” 
insufficient to confer standing on states). 
Similarly, the notion that asylum-seeking families would seek driver’s 
licenses in the state in significant numbers (Mot. 12) depends on an unproven 
                                                 
3 See also Michelle Hackman, Why Illegal U.S. Border Crossings Likely Aren’t 
Fueling the COVID-19 Surge, Wall St. J. (Aug. 21, 2021) (explaining that “[m]ost 
public-health experts say it isn’t likely that migrants are contributing significantly 
to transmissions within the U.S.”). 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 14 of 25

 
 
13
causal chain too speculative to support standing on its own.  See California v. 
Texas, 141 S. Ct. 2104, 2117 (2021) (explaining that “where a causal relation 
between injury and challenged action depends upon the decision of an independent 
third party,” standing “is ordinarily substantially more difficult to establish”); 
Arpaio v. Obama, 797 F.3d 11, 20 (D.C. Cir. 2015) (rejecting standing claim 
premised on “anticipated action of unrelated third parties”). 
Texas also asserts parens patriae standing.  Mot. 13.  Yet its claimed 
basis—that the “health and well-being” of its residents” will be negatively affected 
if Plaintiffs prevail—is another gloss on its other standing arguments and fails for 
the same reasons.  And in any event, the federal Defendants are already amply 
representing those interests.  Cf. Com. of Pa., by Shapp v. Kleppe, 533 F.2d 668, 
677 (D.C. Cir. 1976) (a state lacks parens patriae standing on matters “within the 
sovereignty of the Federal Government” where the state “seek[s] to represent the 
same interest of the same citizens” as the Federal Government).4 
                                                 
4 Texas’s cited decisions are inapposite.  In Wyoming v. Oklahoma, 502 U.S. 437, 
448-49 (1992), a special master made detailed factual findings concerning the 
state’s standing in a coal dispute; not so here.  Texas v. United States, 809 F.3d 
134, 155 (5th Cir. 2015), as revised (Nov. 25, 2015) similarly addressed a 
developed record on standing, concerning an identified population of 
undocumented Texas residents who would be eligible for driver’s licenses.   
Air Alliance Houston v. EPA found that states had standing due to their 
“proprietary interests such as owning land or participating in a business venture.”  
906 F.3d 1049, 1059-60 (D.C. Cir. 2018) (alterations omitted).  Texas makes no 
such claim here.  And in Delaware Dep’t of Nat. Res. & Env’t Control v. EPA, 785 
F.3d 1 (D.C. Cir. 2015), the state claimed injury based on harm to its “air quality,” 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 15 of 25

 
 
14
Texas’s Ability to Protect Its Interests.  Texas repeats these same claims 
in asserting that it has a protectable interest that would be impaired in this action, 
as Rule 24(a)(2) requires.  Mot. 16-17.  Texas’s arguments under this Rule should 
be rejected for the same reasons as above.   
Moreover, Texas’ concern regarding the “health of Texans statewide,” Mot. 
8-9, is belied by its affirmative rejection of COVID-19 protections in numerous 
other contexts.  For example, in July Governor Abbott barred local governments, 
schools, and many private businesses from taking basic precautions to stop the 
spread of COVID-19.  Texas Executive Order GA-38, https://perma.cc/BGM8-
EV6E.  That order vacated all “COVID-19-related operating limits,” id. ¶ 3(a); 
ordered that “no person may be required by any jurisdiction to wear . . . a face 
covering,” id. ¶ 3(b); and eliminated any masking requirements imposed by any 
local government or school, see id. ¶ 4(a).  The State has also sued to stop at least 
15 school districts from having their own mask mandates.  See Chuck Lindell, 
Austin, 5 Other School Districts Ask Court To Halt AG Ken Paxton’s Anti-Mask 
Lawsuits, Austin American-Statesman (Sept. 23, 2021), 
https://www.statesman.com/story/news/2021/09/23/texas-school-districts-ask-
court-block-paxtons-anti-mask-lawsuits/5828611001/.  The same day that Texas 
                                                 
which would impair its ability to maintain certain legal standards “pursuant to the 
Clean Air Act.”  Id. at 8.  Here, Texas asserts no such damage to its ability to fulfill 
its legal obligations. 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 16 of 25

 
 
15
filed its motion for intervention, the Governor banned any entity—including 
private businesses—in the state from mandating vaccines for workers or 
customers.  See Governor Abbott Issues Executive Order Prohibiting Vaccine 
Mandates By Any Entity, Adds Issue To Special Session Agenda, Off. of the Tex. 
Gov. (Oct. 11, 2021), https://gov.texas.gov/news/post/governor-abbott-issues-
executive-order-prohibiting-vaccine-mandates-by-any-entity-adds-issue-to-special-
session-agenda.  Texas cannot seriously claim that its intervention is motivated by 
the desire to mitigate COVID-19 in the State.5  
B. Texas’ Motion Is Untimely. 
 
For much the same reasons Texas has failed to identify exceptional 
circumstances justifying its failure to seek intervention below, see supra Part I, 
                                                 
5 Texas relies on Nuesse v. Camp, 385 F.2d 694, 700 (D.C. Cir. 1967), but there 
“the court found on the specific facts a sufficient interest for standing in the stare 
decisis effect of a judgment.”  In re Vitamins Antitrust Class Actions, 215 F.3d 26, 
29 (D.C. Cir. 2000); see also Nuesse, 385 F.2d at 701 (explaining that federal 
statute at issue adopted state law in key respects, which granted states special 
interest in its interpretation).  Texas does not explain how the legal effects of a 
judgment in this appeal on the interpretation of a federal statute would affect its 
ability to vindicate its own state laws or directives.  
 
NRDC v. Costle, 561 F.2d 904 (D.C. Cir. 1977), is similarly inapt.  That case 
allowed intervention by industry groups in an environmental case where the 
parties’ settlement agreement restricted an agency’s authority to promulgate future 
rules.  Id. at 909-10.  The intervenors sought only to participate in settlement 
implementation, not “upset the [] agreement” itself.  Id. at 908; see also Defs. of 
Wildlife v. Perciasepe, 714 F.3d 1317, 1325-26 & n.8 (D.C. Cir. 2013) 
(discussing Costle’s limitations and observing that it did not analyze standing or 
protectable interest). 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 17 of 25

 
 
16
Texas’ motion must be denied as untimely under Rule 24(a).  See Amador Cty., 
Cal. v. U.S. Dep’t of the Interior, 772 F.3d 901, 903 (D.C. Cir. 2014) (“If the 
motion is untimely, the explicit language of [Rule 24] dictates that ‘intervention 
must be denied.’”).  “Timeliness ‘is to be judged in consideration of all the 
circumstances, especially weighing the factors of time elapsed since the inception 
of the suit, the purpose for which intervention is sought, the need for intervention 
as a means of preserving the applicant’s rights, and the probability of prejudice to 
those already parties in the case.’”  Id. (quoting United States v. Brit. Am. Tobacco 
Australia Servs., Ltd., 437 F.3d 1235, 1238 (D.C. Cir. 2006).   
Texas first suggests that its motion is timely under Federal Rule of Appellate 
Procedure 15(d).  Mot. 13.  But that Rule concerns “petition[s] for review” of 
agency orders, Fed. R. App. P. 15(a), not litigation challenging agency action 
properly commenced in district court.  See Amalgamated Transit Union, 771 F.2d 
at 1553 n.3.  Texas asserts that this distinction is immaterial because the merits of 
this appeal partly involve legal issues.  Mot. 14.  As noted above, however, supra 
at 4 n.1, had Texas properly sought intervention below, this Court would defer to 
multiple aspects of the District Court’s ruling on that motion— including its 
factual findings concerning Texas’s standing theories and alleged harms.  See, e.g., 
Amador Cty., 772 F.3d at 904.  It is precisely “to prevent litigants from using 
procedural gamesmanship to skirt unfavorable standards of review, [that] there 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 18 of 25

 
 
17
must be a steep threshold for allowing intervention on appeal.”  Richardson, 979 
F.3d at 1105.  Applying Rule 15(d) would incentivize just such gamesmanship.    
And there is no question Texas’s motion is untimely under Rule 24.  As 
noted, Texas filed a separate suit against Defendants concerning the Title 42 
Process on April 22, 2021.  See supra at 10 n.2; Mot. 3-4.  By that date, at the very 
latest, Texas was already asserting that the Title 42 Process implicated the 
wellbeing of its residents.  Amador Cty., 772 F.3d at 904 (holding that delay may 
be assessed “from the time when the prospective intervenor knew or should have 
known that any of its rights would be directly affected by the litigation, or when 
the potential inadequacy of representation came into existence”) (cleaned up).  
Texas purportedly now fears that “Defendants may settle litigation over the Title 
42 Process on terms that may . . . be disadvantageous to Texas.”  Mot. 18.  But 
Texas declined to seek to intervene in the District Court for more than three 
months after filing its own separate suit elsewhere, while on notice that the parties 
here were engaged in settlement discussions explicitly seeking to “resolve or 
narrow the dispute at issue in this case.”  Dkt. 87 (Feb. 23, 2021).  Texas instead 
seeks to intervene after those settlement discussions reached an impasse; the 
parties resumed preliminary injunction litigation; the District Court issued the 
preliminary injunction; Defendants appealed; and Defendants successfully sought a 
stay of the preliminary injunction pending appeal.   
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 19 of 25

 
 
18
Texas incorrectly argues that its motion is nonetheless timely solely because 
intervention “would not prejudice the parties.”  Mot. 15.  While prejudice 
precludes a finding of timeliness, the inverse is not necessarily true.  7C Charles A. 
Wright & Arthur R. Miller, Federal Practice & Procedure § 1916 (3d ed.) 
(updated Apr. 2021) (explaining that absence of prejudice merely “supports finding 
the motion to be timely”).  Even under the authorities Texas cites, the “‘time 
elapsed since the inception of the suit’ is [a] relevant” factor, even absent prejudice 
to the parties.  Roane v. Leonhart, 741 F.3d 147, 151 (D.C. Cir. 2014) (citation 
omitted); see also Federal Practice & Procedure § 1916 (“[T]he court necessarily 
will consider the time element itself.”).  Delay and potential prejudice are distinct 
factors.  See, e.g., Amador Cty., 772 F.3d at 903 (quoting Brit. Am. Tobacco, 437 
F.3d at 1238).  
In any event, Texas’ belated intervention does prejudice Plaintiffs.  “It 
would be entirely unfair . . . to allow a potential intervenor to lay in wait” 
throughout the relevant District Court proceedings “before deciding whether to 
participate” on appeal.  Amalgamated Transit Union, 771 F.2d at 1553.  That is 
particularly so given that Texas is relying on disputed factual assertions.  Even 
when made before the district court, a motion to intervene filed after that court has 
rendered the decision at issue “will usually be denied.”  See Assoc’d Builders & 
Contractors, Inc. v. Herman, 166 F.3d 1248, 1256-57 (D.C. Cir. 1999) (citation 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 20 of 25

 
 
19
omitted).  This “presumption” encourages prospective intervenors “to try to enter 
the proceedings . . . at a time when notice of their arguments would have enabled 
the district court to avert the alleged errors.”  Id. (quoting Mass. Sch. of Law v. 
United States, 118 F.3d 776, 783 n. 5. (D.C. Cir. 1997)).  Here, Texas should have 
raised its arguments opposing a preliminary injunction with the District Court 
before that court ruled on Plaintiffs’ motion for an injunction.  Doing so would 
have allowed Plaintiffs to gather and submit evidence in opposition to Texas’ 
arguments and enabled the District Court to consider the State’s concerns in the 
first instance.  See NAACP v. New York, 413 U.S. 345, 367 (1973) (affirming 
denial of intervention based on failure to intervene at “critical stage” of district 
court proceedings). 
C. Defendants Are Adequately Representing Texas’ Identical Interests. 
 
 
“The most important factor in determining adequacy of representation is 
how the interest of the absentee compares with the interests of the present parties.”  
Federal Practice & Procedure § 1909.  Thus, “[w]here the party seeking to 
intervene has the same ultimate goal as a party already in the suit, courts have 
applied a presumption of adequate representation.”  Moosehead Sanitary Dist. v. S. 
G. Phillips Corp., 610 F.2d 49, 54 (1st Cir. 1979).  Moreover, mere “difference[s] 
of opinion concerning the tactics with which litigation should be handled does not 
make inadequate the representation of those whose interests are identical with that 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 21 of 25

 
 
20
of an existing party.’”  Jones, 348 F.3d at 1020 (quoting Federal Practice & 
Procedure § 1909, at 344 (2d. ed. 1986)).6  
As already discussed, the interests Texas seeks to vindicate and the legal 
position it urges align entirely with those of Defendants.  See supra Part I.  This 
case is directly analogous to Building & Construction Trades Department, AFL-
CIO v. Reich, 40 F.3d 1275 (D.C. Cir. 1994), in which this Court upheld denial of 
intervention as of right because the intervenor sought to advance the same position 
as the Department of Labor, and “offered no argument not also pressed by [the 
Department].”  Id. at 1282.  Here, as there, the Court should deny intervention. 
III. 
The Court Should Deny Texas’ Alternative Request For Permissive 
Intervention. 
 
The standard for permissive intervention under Rule 24(b) likewise does not 
apply here because Texas seeks the extraordinary remedy of intervening for the 
                                                 
6 Contrary to Texas’ assertion, Mot. 17, Fund for Animals, Inc. v. Norton, 322 F.3d 
728 (D.C. Cir. 2003), set forth no blanket rule that federal agencies do not 
represent intervenors’ interests.  The intervenor there was a foreign government 
whose interests plainly diverged from “the interests of the American people.”  Id. 
at 736.   In general, “it will be assumed that the United States adequately 
represents” the sort of public interests Texas asserts.  Federal Practice & 
Procedure § 1909.   
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 22 of 25

 
 
21
first time on appeal.  See supra Part I.  Even if this Court were to apply Rule 
24(b)’s standards, however, intervention should still be denied.   
First, Texas lacks standing in its own right.  See supra Part II.A.  Second, its 
motion is untimely.  See supra Parts I, II.B.  Third, permissive intervention is 
discretionary.  See In re Idaho Conservation League, 811 F.3d 502, 515 (D.C. Cir. 
2016).  As discussed, permitting Texas “to lay in wait” until after both the parties’ 
negotiations and the preliminary injunction litigation had concluded below “before 
deciding whether to participate” for the first time on appeal “would be entirely 
unfair.”  See Amalgamated Transit Union, 771 F.2d at 1553; see also supra Parts I, 
II.B.  For that reason and for all the reasons already described, sound discretion 
weighs heavily in favor of denying intervention here.   
CONCLUSION 
The Court should deny Texas’ motion. 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 23 of 25

 
 
22
Dated:  October 15, 2021 
 
 
Stephen B. Kang 
Cody Wofsy 
Morgan Russell 
My Khanh Ngo 
American Civil Liberties  
Union Foundation, Immigrants’  
Rights Project 
39 Drumm Street 
San Francisco, CA 94111 
(415) 343-0770 
 
Andre Segura 
Kathryn Huddleston 
Brantley Shaw Drake 
American Civil Liberties 
Union Foundation of Texas, Inc. 
5225 Katy Freeway, Suite 350 
Houston, Texas 77007 
(713) 942-8146 
  
Karla M. Vargas  
Texas Civil Rights Project 
1017 W. Hackberry Ave. 
Alamo, Texas 78516 
(956) 787-8171 
 
Jamie Crook  
Blaine Bookey 
Karen Musalo 
Neela  Chakravartula 
Center for Gender & Refugee Studies 
200 McAllister Street 
San Francisco, CA 94102 
(415) 565-4877 
 
 
Respectfully submitted, 
 
 /s/ Lee Gelernt 
Lee Gelernt 
Omar Jadwat 
Daniel A. Galindo 
Ming Cheung 
David Chen 
American Civil Liberties Union 
Foundation, Immigrants’ Rights Project 
125 Broad Street, 18th Floor 
New York, NY 10004 
(212) 549-2600 
lgelernt@aclu.org 
 
Robert Silverman 
Irit Tamir 
Oxfam America 
226 Causeway Street, Suite 500 
Boston, MA 02115 
(617) 482-1211 
 
Scott Michelman  
Arthur B. Spitzer  
American Civil Liberties Union 
Foundation of the District of Columbia 
915 15th Street, NW, 2nd floor 
Washington, D.C. 20005 
(202) 457-0800 
 
Tamara F. Goodlette 
Refugee and Immigrant Center for 
Legal Education and Legal Services 
(RAICES) 
802 Kentucky Avenue 
San Antonio, TX 78201 
(210) 960-3206 
 
 
Counsel for Plaintiffs-Appellees 
 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 24 of 25

 
 
CERTIFICATE OF COMPLIANCE 
This motion response complies with the type-volume limitation of Federal 
Rule of Appellate Procedure 27(d)(1)(E) and (2)(A) because: 
1. It contains 5,057 words. 
2. It complies with the typeface and type-style requirements of Federal Rules 
of Appellate Procedure 32(a)(5) and 32(a)(6) because it has been prepared in a 
proportionally spaced typeface using Microsoft Word Professional Plus 2019 in 14-
point Times New Roman font. 
 
 
 
 
 
 
 
/s/Lee Gelernt 
 
 
 
 
 
 
 
Lee Gelernt 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on October 15, 2021, I electronically filed the foregoing 
with the Clerk for the United States Court of Appeals for the DC Circuit by using 
the CM/ECF system. A true and correct copy of the foregoing has been served via 
the Court’s CM/ECF system on all counsel of record.  
 
 
 
 
 
 
 
 
/s/Lee Gelernt 
 
 
 
 
 
 
 
Lee Gelernt 
 
 
 
 
USCA Case #21-5200      Document #1918396            Filed: 10/15/2021      Page 25 of 25

File and source

File

gov.uscourts.cadc.38067.01208368136.0.pdf

Size

111,378 bytes

SHA-256

79223bd424d0ab59ff3da08db3bcdf096388508f44418962c5d156ce9a56c715

Our copy

gov.uscourts.cadc.38067.01208368136.0.pdf

Original

archive.org