Court filing

Defendants' Opposition to Texas Motion to Intervene — Huisha-Huisha v. Mayorkas (2021-10-14)

Filed October 14, 2021 in Nancy Huisha-Huisha v. Alejandro Mayorkas; one of 56 filings from this case.

Record facts

Court	U.S. Court of Appeals for the D.C. Circuit
Filed	2021-10-14

Full text

[ORAL ARGUMENT NOT YET SCHEDULED]

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,

Plaintiffs-Appellees,

ALEJANDRO MAYORKAS, Secretary of Homeland
Security, et al.,

Defendants-Appellants.

No. 21-5200

DEFENDANTS’ OPPOSITION TO THE STATE OF TEXAS’S
MOTION TO INTERVENE
BRIAN M. BOYNTON
Acting Assistant Attorney General

CHANNING PHILLIPS
Acting United States Attorney

SHARON SWINGLE
JOSHUA WALDMAN
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0236
joshua.waldman@usdoj.gov
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INTRODUCTION
Although this litigation began nine months ago, and this appeal has been
pending for weeks, the State of Texas has moved to intervene a mere ten days
before the opening brief is due under this Court’s expedited schedule. Texas seeks
to justify its untimeliness by claiming that the need to intervene only recently came
to light – but then points to facts that were known months, if not years, ago. Texas
also seeks to justify its intervention by pointing to statutory arguments the State is
advancing in other litigation against the federal government, even though those
arguments have no bearing on the district court’s holding in this case or the federal
government’s defense of this lawsuit and its efforts to seek appellate relief.
Granting intervention would prejudice the parties by belatedly interjecting Texas’s
new arguments into this case (and would do so only after the federal government
filed its opening brief). If granted intervention, Texas may also prejudice the
parties with unanticipated and unnecessary filings – motions for divided argument,
rehearing petitions, or other such motions – just as it has with its motion to
intervene in this appeal at the eleventh hour and after months of inaction. The
motion to intervene should be denied.
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STATEMENT
I.
Background
Under 42 U.S.C. § 265, the Secretary of the Department of Health and
Human Services (HHS) is authorized to “prohibit * * * the introduction of
persons” into the United States to “avert” the “serious danger of the introduction
of” a “communicable disease,” “[w]henever the [Secretary] determines that” “a
suspension of the right to introduce such persons” is “required in the interest of the
public health.” 42 U.S.C. § 265. In March 2020, in light of the unprecedented
COVID-19 pandemic, HHS and the Centers for Disease Control and Prevention
(CDC) issued an interim final rule, pursuant to their authority under 42 U.S.C.
§ 265, to provide a procedure for the CDC Director to temporarily suspend the
introduction of certain persons into the United States. 85 Fed. Reg. 16,559 (Mar.
24, 2020). The CDC Director also issued an order, pursuant to the interim rule,
temporarily suspending the introduction of certain noncitizens traveling from
Canada and Mexico into the United States. 85 Fed. Reg. 17,060 (Mar. 26, 2020).
Both the interim rule and the order were expressly predicated on the risk of
communicable disease transmission into the United States, particularly where
noncitizens would ordinarily be held in congregate settings – in facilities not
designed or equipped to quarantine, isolate or enable social distancing – while
undergoing immigration processing. 85 Fed. Reg. at 16,560; 85 Fed. Reg. at
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17,061, 17,066. CDC explained that its interim rule “encompass[es] those who
have physically crossed a border of the United States.” 85 Fed. Reg. at 16,563.
HHS and CDC subsequently published a final rule, and issued a new order,
suspending the introduction of all covered noncitizens into the United States,
subject to certain exceptions. 85 Fed. Reg. 56,424 (Sept. 11, 2020); 85 Fed. Reg.
65,806 (Oct. 16, 2020).
In February 2021, CDC issued a notice of its decision to temporarily except
from expulsion unaccompanied noncitizen children encountered in the United
States, pending its forthcoming public-health reassessment of the Order. 86 Fed.
Reg. 9942 (Feb. 17, 2021). Then, in July 2021, CDC announced that it was
confirming the exception of unaccompanied noncitizen children from the Order,
because there is infrastructure in place to manage the public health risks posed by
introduction of these children, who are typically placed into HHS Office of
Refugee Resettlement custody, and in light of the humanitarian concerns posed by
expelling unaccompanied noncitizen children. See 86 Fed. Reg. 38,717 (July 22,
2021).
In August 2021, CDC issued a new Order, which replaced and superseded
the previous Orders. Addendum to Stay Motion (Add.) 72-95; 86 Fed. Reg.
42,828 (Aug. 5, 2021) (CDC Order). The CDC Order explains that, “[u]pon
reassessment of the current situation with respect to the pandemic and the situation
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at the U.S. borders, CDC finds [that] an Order” temporarily suspending the right to
introduce certain noncitizens traveling from Canada and Mexico, regardless of
their country of origin, into the United States “remains necessary” for single adults
and family units, subject to recurring 60-day reviews. Add.74. CDC made this
determination after an updated public health assessment that evaluated numerous
considerations, including the particular risks of COVID-19 transmission in
congregate settings at U.S. Department of Homeland Security (DHS) facilities,
Add.79, the limited ability to maintain physical distancing and cohorting in those
facilities given capacity constraints, Add.83-84, the significant increase in CBP
encounters that has caused DHS facilities to exceed capacity, Add.84, the
emergence of the highly transmissible Delta variant, Add.78, and the increase in
community transmission and hospitalizations along the U.S.-Mexico border,
Add.75, 82-83.
II.
Prior Proceedings
On January 12, 2021, plaintiffs brought suit on behalf of a putative class of
noncitizen family units who are or will be subjected to the CDC Order. As
relevant here, plaintiffs asserted that the Order exceeds CDC’s Section 265
authority. The case was held in abeyance from February 23, 2021, to August 2,
2021, as the parties engaged in settlement discussions. See ECF Nos. 87, 99, 100,
102, 103, 105-111 (twelve joint motions seeking an abeyance in light of settlement
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discussions). When discussions reached an impasse, the parties resumed litigation
and the government filed a supplemental declaration in support of its opposition to
the plaintiffs’ motions and plaintiffs filed a reply brief and declarations. See ECF
Nos. 116, 118.
On September 16, 2021, the district court granted class certification and a
classwide preliminary injunction. As relevant here, the district court concluded
that Section 265 likely does not authorize the government to expel noncitizens
once they have crossed the border into the United States, reasoning that “even
accepting * * * that the phrase, ‘prohibit * * * the introduction of,’ means ‘to
intercept or prevent,’ the ‘process’ of introduction * * * this phrase also does not
encompass expulsion from the United States” and “[e]xpelling persons” “is
entirely different from interrupting, intercepting, or halting the process of
introduction.” Add.41. The district court also held that the remaining preliminary
injunction factors weigh in favor of plaintiffs, Add.43-57, and the court enjoined
the federal government from expelling class members from the United States under
the CDC Orders, Add.58, 60.
On September 17, 2021, the federal government filed a notice of appeal and
a motion in this Court for a stay pending appeal. On September 30, 2021, this
Court granted the motion, and ordered expedited briefing, with the federal
government’s opening brief due on October 21, 2021.
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On October 11, 2021, the State of Texas filed a motion to intervene in this
litigation. Texas had not previously sought to intervene in this case, or even filed
an amicus brief in proceedings below. That motion is opposed by all parties to the
appeal.
ARGUMENT
The State of Texas has not met the standard for intervention, either as of
right or by permission. Intervention requires a timely motion, but Texas has been
anything but timely. This litigation was commenced nine months ago, in January
2021, yet until now Texas has taken no steps to intervene or otherwise participate
in this case. Texas claims that its need to intervene only recently came to light.
But the State points only to settlements reached before a complaint was even filed
in this litigation, and to filings in other litigation that merely restate the same
position the federal government had been taking for months. Texas can hardly
claim to have newly discovered events that took place long ago. In short, there are
no new developments that would excuse Texas’s delay.
In addition, Texas’s intervention would be prejudicial. Texas would likely
argue – as it is currently arguing in the Northern District of Texas in the State’s
affirmative lawsuit against the federal government – that the federal government
acted unlawfully when, among other things, it excepted unaccompanied noncitizen
children from the CDC Order. In that event, Texas’s intervention would force the
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federal government, in this appeal, to simultaneously seek to vacate the district
court’s injunction and to defend against the argument Texas has asserted in a
separate action, which has not previously been raised or considered in this
litigation – and to do so only in a reply brief, given that Texas proposes that the
federal government file its opening brief first, and Texas will file thereafter. In
addition, if Texas were permitted to intervene, it could then file any number of
substantive or procedural motions, or take other action as a party, which could
unnecessarily complicate this litigation to the prejudice of the existing parties.
Texas’s carefully worded statement that it does not “intend” “at this time” to take
such actions provides no assurance at all. Given that Texas could present its
arguments as amicus curiae, the primary purpose of seeking to intervene appears to
be to allow the State to do precisely that.
Finally, the federal government adequately represents Texas’s interests in
this litigation. Indeed, Texas conceded that until recently, the federal government
was adequately representing the State’s interests. Texas claims that its mind was
changed due to recent events. But the State once again relies on facts of which it
has been aware for months or years, namely, settlements reached before a
complaint was even filed in this litigation, and filings in other litigation restating
positions the federal government has consistently taken. Texas contends that
recent events show a likelihood that the federal government will settle this case, or
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will fail to appeal, to the State’s detriment. But recent events show the opposite:
the federal government announced that settlement negotiations reached an impasse,
and after the district court entered an injunction, the federal government appealed
and sought a stay the very next day.
I.
Intervention as of Right Should Be Denied.
Intervention as of right requires four elements: “1) the application to
intervene must be timely, 2) the party must have an interest relating to the property
or transaction which is the subject of the action, 3) the party must be so situated
that the disposition of the action may, as a practical matter, impair or impede the
party’s ability to protect that interest, and 4) the party’s interest must not be
adequately represented by existing parties to the action.” Defenders of Wildlife v.
Perciasepe, 714 F.3d 1317, 1322-23 (D.C. Cir. 2013). The party seeking to
intervene as of right must also demonstrate Article III standing. Id. at 1323. The
putative intervenor must “satisfy all four elements of the Rule in order to intervene
as of right.” Jones v. Prince George’s County, 348 F.3d 1014, 1019 (D.C. Cir.
2003).
A. Texas’ Motion is Untimely

In assessing the timeliness of a motion to intervene, “timeliness is to be
judged in consideration of all the circumstances, especially weighing the factors of
time elapsed since the inception of the suit.” Smoke v. Norton, 252 F.3d 468, 471
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(D.C. Cir. 2001) (emphasis added) (quoting United States v. AT&T, 642 F.2d 1285,
1295 (D.C. Cir. 1980)). Here, plaintiffs filed their complaint on January 12, 2021
– more than nine months ago – but Texas never sought to intervene in the district
court. When the parties engaged in several months of settlement discussions, see
supra at 4; Mot. 10, Texas did not intervene, notwithstanding its current assertion
that the federal government has a “history of using litigation settlements to set
national policy on important immigration and border security issues” in a way that
supposedly disadvantages Texas. Mot. 2. And by Texas’s own admission, during
that time, it initiated other litigation in the Northern District of Texas “to ensure
that its own interests in the Title 42 Process were vindicated,” Mot. 10, and yet it
stood idly by in this litigation without seeking to intervene.

When the settlement negotiations reached an impasse and this litigation
resumed, Texas still took no action to intervene. After the district court entered a
preliminary injunction on September 16, 2021, Texas still did nothing. And when
the federal government filed a notice of appeal the next day, and then expeditiously
filed a successful motion for a stay pending appeal, Texas once again failed to act.
Now, twenty-six days after the district court entered its injunction, and eleven days
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after this Court ordered expedited briefing, Texas belatedly seeks to intervene.
Under any plausible standard, its motion is untimely.1

“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.’” Amalgamated Transit Union Int’l v. Donovan, 771 F.2d 1551, 1552
(D.C. Cir. 1985). Texas does not dispute its “absence in the district court
proceedings,” Mot. 14, but contends its failure to seek intervention in the district
court is “immaterial” because the State’s motion to intervene would be timely if it
were a motion to intervene under Federal Rule of Appellate Procedure 15(d). That
argument is meritless. Texas concedes that “[a]ppellate courts judge motions to
intervene under Federal Rule of Civil Procedure 24,” Mot. 11, not under Rule
15(d). Moreover, Rule 15(d) applies when a litigant files a direct petition for
review in the court of appeals, and in that circumstance there would be no district
court proceedings in which to intervene. A putative intervenor obviously could not
be faulted for failing to intervene in non-existent district court proceedings. But in
this case, district court proceedings were pending for eight months between the

1 Further still, when different plaintiffs brought a similar challenge to CDC’s
authority under 42 U.S.C. § 265 to issue its Order, see P.J.E.S. v. Wolf, No. 1:20-
cv-02245-EGS-GMH (D.D.C.), Texas did not move to intervene at any point
before the district court, nor did it move to intervene in this Court during the
appeal, P.J.E.S. v. Mayorkas, No. 20-5357 (D.C. Cir.). Indeed, Texas did not
intervene in that litigation even after the CDC expressly excepted unaccompanied
noncitizen children from expulsion under the Order.
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filing of the complaint and the entry of a preliminary injunction, and Texas failed
at any point to move for intervention. (Indeed, the entry of a preliminary
injunction does not end proceedings in the district court, and yet Texas has still not
sought to intervene in that court.) The State’s persistent failure to act renders its
motion at this stage of the litigation untimely. Even drawing on Rule 15(d) as an
analogy does not assist Texas: Rule 15(d) requires intervention within 30 days of
when the action is commenced (in January 2021), and that time has long since
passed. Nor, contrary to Texas’s argument (Mot. 14), does the standard of review
in this Court shed any light on whether the State’s motion is timely.

Texas contends that its motion is timely because it only “recently” came to
light that, in the State’s view, the federal government “will not adequately” defend
the CDC Order. Mot. 13-14. Texas’s unsupported assertion that the federal
government will not adequately defend the CDC Order, which likely comes as a
surprise to the plaintiffs in this action, is discussed infra at 16-21. But even taking
Texas’s assertion at face value, the State does not point to any recent developments
that would excuse its months-long failure to seek intervention at any prior point in
the litigation or explain why intervention has only recently become necessary.
Texas cannot justify its lack of timeliness by pointing to three settlement
agreements that pre-date the instant litigation. Mot. 2-3. Texas fares no better in
relying on other litigation that the State initiated six months ago, in which Texas
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asserts that the federal government is not adequately enforcing immigration law or
the CDC Order. Mot. 3-4.2 Texas can hardly claim to have come only recently to
the view that the federal government is inadequately enforcing immigration law
given that Texas has been (erroneously) arguing that view for the past six months.

Nor is there anything new in the recent filings in those cases that would
explain Texas’s prior failure to seek intervention. For example, Texas points to a
Declaration attached to a Status Report in which the federal government notes it
has been working to identify individuals who might be excepted from the CDC
Order for humanitarian reasons. Mot. 3. But that Declaration explained that “the
Title 42 order has always included exceptions for humanitarian reasons,” Decl. of
Blas Nunez-Neto, Dkt. 105-1 ¶ 11 (emphasis added), Texas v. Biden, No. 2:21-cv-
00067 (N.D. Tex.), a fact noted in the first CDC Order, 85 Fed. Reg. at 17,061
(noting humanitarian exceptions), as well as the most recent, 86 Fed. Reg. at
42,838 (same).

Similarly, Texas points to a statement in the federal government’s brief in
other litigation, filed on September 21, 2021, making the unremarkable point that
42 U.S.C. § 265 confers discretion on CDC to determine, among other things,

2 Texas v. Biden, No. 2:21-cv-00067-Z (N.D. Tex.) (complaint filed April
13, 2021); Texas v. Biden, No. 4:21-cv-00579-P (N.D. Tex.) (complaint filed April
22, 2021).
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which persons to prohibit. Mot. 4. Again, however, this is nothing new. The
federal government has taken that same view since the very first CDC Order, by
exempting (among others) U.S. citizens, members of the armed forces and other
government employees and contractors, and persons from foreign countries who
hold valid travel documents and arrive at a port of entry. 85 Fed. Reg. at 17,061;
42 C.F.R. § 71.40(e), (f). And since February 2021, CDC has been excepting from
expulsion unaccompanied noncitizen children encountered in the United States. 86
Fed. Reg. 9942. Furthermore, the sentence from the federal government’s
September 2021 brief, which Texas quotes in its motion, appeared almost word-
for-word in the federal government’s earlier brief in that litigation, filed more than
four months ago. Compare Mot. 4 with Texas v. Biden, No. 4:21-cv-00579-P
(N.D. Tex.), Dkt. 28 at 25 (July 6, 2021) (“Even if CDC ‘determines’ that there is a
‘serious danger of the introduction of [a] communicable disease into the United
States’ that is ‘increased by the introduction of persons or property’ from another
country, CDC is not required to do anything.”). Texas can hardly claim surprise to
see the same argument advanced in the federal government’s recent brief.

Finally, Texas relies (Mot. 4, 14-15) on DHS’s Guidelines for the
Enforcement of Civil Immigration Law, issued on September 30, 2021.3 Those
Guidelines state (at 2) that because DHS “do[es] not have the resources to

3 https://www.ice.gov/doclib/news/guidelines-civilimmigrationlaw.pdf.
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apprehend and seek the removal of every one” of the 11 million undocumented or
otherwise removable noncitizens in the United States, it must therefore “exercise
[its] discretion and determine whom to prioritize for immigration enforcement
action” and “[t]he fact an individual is a removable noncitizen therefore should not
alone be the basis of an enforcement action against them.” But Texas has known
this for months: DHS’s interim guidance, issued in January 2021, similarly stated
(at 2) that “[d]ue to limited resources, DHS cannot respond to all immigration
violations or remove all persons unlawfully in the United States” and it must
therefore “implement civil immigration enforcement based on sensible priorities
and changing circumstances.”4 Indeed, Texas has been litigating the lawfulness of
DHS’s interim guidance since April 2021. See Texas v. United States, No. 6:21-
cv-00016 (S.D. Tex.). And in any event, the Guidelines do not mention or
specifically address Title 42 or the CDC Order, and have no bearing on the federal
government’s argument in this Court.

Texas contends that even if its motion is untimely, its tardiness will not
prejudice the parties. Mot. 15. But Texas’s motion has already prejudiced the
federal government, by forcing it to divert time and attention away from drafting

4 https://www.dhs.gov/sites/default/files/publications/21_0120_enforcement-
memo_signed.pdf.
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its opening brief on an expedited schedule in order to respond to the State’s motion
to intervene.

Moreover, Texas has argued in other litigation in the Northern District of
Texas that the federal government acted unlawfully when, among other things, it
exempted unaccompanied noncitizen children from the CDC Order. See Mot. 3-4,
10; Texas v. Biden, No. 4:21-cv-00579-P (N.D. Tex.). That argument has no
bearing on this case, because the extent of CDC’s discretion under Section 265 to
except certain persons does not address the relevant issue here, which is whether
Section 265 authorizes expulsion. But to the extent the State, if intervention were
granted, would seek to introduce an erroneous limitation on CDC’s Section 265
authority into this case, or otherwise interject the State’s position as advanced in
other litigation, doing so would prejudice the federal government. It would force
the federal government, in the context of this appeal, to simultaneously litigate two
different cases on an expedited basis, seeking reversal of the district court’s
injunction while also refuting Texas’s litigation position in a different district court
matter. It would introduce an argument in this case that was not presented to or
decided by the district court, and is not properly raised for the first time in the court
of appeals. Moreover, Texas proposes to file its brief after the federal government
files its opening brief, see Mot. 15, so that the federal government’s response
would be limited to its reply brief.
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Further still, if intervention were granted, Texas would “become [a] full-
blown part[y] to [the] litigation,” Old Dominion Electric Cooperative v. FERC,
892 F.3d 1223, 1232 (D.C. Cir. 2018), after which it could seek divided oral
argument time, file a petition for rehearing (or for initial rehearing en banc), or
even petition the Supreme Court for a writ of certiorari before judgment or any
other unanticipated procedural steps that would unnecessarily complicate the
litigation and prejudice the parties. Texas’s noncommittal statement – that it does
not “at this time” “intend” to make other “substantive” filings “before oral
argument,” Mot. 15 – is no assurance at all. Given that Texas could set out its
legal position by filing an amicus brief in this case (and all parties previously
informed Texas that they would not oppose its participation as amicus), it appears
that the purpose of seeking intervention is to allow Texas to make precisely the
kind of substantive and procedural filings as a party that would disrupt proceedings
and prejudice the parties. There is no compelling reason to allow for those
disruptive possibilities at this late stage of the litigation.
B. The Federal Government Adequately Represents Any Interests That
Texas Might Have In This Litigation

Nor is Texas’s intervention necessary to adequately protect any interests that
Texas might have arising out of this litigation – although the federal government
certainly does not concede that any such interests exist, or that Texas has standing
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to intervene. Texas itself concedes that until recently, the federal government
“Defendants were adequately defending the Title 42 Process.” Mot. 2 (emphasis
added). The State argues that this has changed due to “[e]volving circumstances.”
Id. But the only “circumstances” Texas specifies are settlements that pre-date this
litigation, Mot. 2-3, and filings in other cases that re-state the federal government’s
longstanding positions of which Texas has been aware for months, Mot. 3-4. See
also supra at 11-14. Accordingly, Texas points to no substantial basis for its
apparent, and belated, about-face. Regardless, the federal government’s position
on immigration enforcement in other litigation, and involving different statutory
and regulatory programs, has no bearing on whether the federal government’s
robust and consistent defense of the CDC Order in this case adequately represents
Texas’s interests in defending the Order.

The State asserts that “the likelihood” that the federal government will settle
this case in a way that disadvantages Texas “has increased significantly in recent
weeks.” Mot. 18. The undisputed record demonstrates that the exact opposite is
true. In recent weeks, the federal government and plaintiffs have ended settlement
negotiations when the parties reached an impasse. Mot. 10; see supra at 4-5. The
federal government then proceeded to vigorously defend the lawfulness of the
CDC Order, including by submission of a new declaration explaining the
continued urgent need for the Order. See supra at 5. And when the district court
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entered its preliminary injunction, the federal government filed a notice of appeal
and an emergency motion for a stay the very next day – while Texas did nothing.
The State’s suggestion that the federal government might now settle the case or
abandon litigation is nothing more than speculation devoid of any basis in the
record.

Finally, Texas asserts a state interest in protecting the health and well-being
of the State’s citizens from the risk of COVID-19, as well as its interest in avoiding
additional strain on its health-care resources and associated financial costs, Mot.
18, and contends that the federal government does not adequately represent those
interests. But the CDC Order – and the federal government’s defense of it – is
expressly predicated on the interests of protecting the health and well-being of U.S.
citizens and residents from the risks of COVID-19 and avoiding additional strain
on healthcare resources. See Add.74 (discussing need to “protect the public health
from an increase in risk of the introduction of COVID-19” and to “reduc[e] risks to
* * * the healthcare systems in local communities,” particularly “at or near the U.S.
borders,”); Add.63-64 ¶ 6 (noting that enjoining the CDC Order “risks
overwhelming the local testing, isolation, and quarantine infrastructure * * * and
will thus burden local healthcare systems and strain healthcare resources”); Add.66
¶ 13 (“[T]he CDC Order remains necessary, while the pandemic continues, to
prevent COVID-19 exposure risks to * * * border communities.”). Indeed, while
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Texas relies heavily on disaster declarations in two of the State’s counties, Mot. 7-
8, the CDC Order notes the “high or substantial levels of community transmission”
in “U.S. counties along the U.S.-Mexico border,” and singles out those two Texas
counties – Hidalgo County and Webb County – as examples. Add.82 & n.58. In
the end, even Texas concedes the point, noting elsewhere in its motion that the
federal government has already recognized and explained the particular exposure
risks of border communities in defending the CDC Order. Mot. 9, 13.

To the extent that Texas is claiming an interest in compelling the federal
government to apply the CDC Order to expel more noncitizens than it is currently
doing – the position the State advances in other litigation, see supra at 15 – it lacks
any cognizable legal interest in compelling the stricter enforcement of federal law
or foreclosing the federal government from permitting humanitarian exceptions as
provided for in the Order. Cf. Linda R.S. v. Richard D., 410 U.S. 614, 619 (1973)
(“[A] private citizen lacks a judicially cognizable interest in the prosecution or
nonprosecution of another.”). But even setting aside that objection, that simply
underscores that it would be wrong to permit Texas to intervene at this very late
stage of proceedings, nominally on the side of the federal government, to enable it
to make arguments never before presented in this litigation that would seek to put
additional but different limitations on the federal government’s authority than
those imposed by the challenged preliminary injunction. This case is not the
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appropriate vehicle for adjudication of those arguments, and the federal
government would be significantly prejudiced if this Court were to allow
intervention for those purposes.

In the end, any legitimate interest that Texas might have that is implicated
by this litigation would be protected if the preliminary injunction of the CDC
Order were vacated. And the very purpose of the federal government’s appeal is to
uphold the lawfulness of the CDC Order and to vacate the district court’s improper
injunction. “[W]hen the party seeking intervention has the same ultimate objective
as a party to the suit,” courts apply a “presumption of adequate representation.”
North Carolina State Conference of NAACP v. Berger, 999 F.3d 915, 930 (4th Cir.
2021); see id. & n.5 (noting that “virtually all our sister circuits have applied [that
presumption] for decades” and collecting cases). Thus, the Fifth Circuit affirmed
the denial of a motion to intervene by the State of Alabama because the defendant
U.S. Environmental Protection Agency was already defending the lawfulness of its
water quality standards that Alabama sought to defend. Associated Industries of
Alabama v. Train, 543 F.2d 1159 (1976). And the Eleventh Circuit affirmed the
denial of a motion to intervene by the Florida Department of Environmental
Protection because Florida’s interests were adequately represented by the
defendant U.S. Environmental Protection Agency, which was already “in this case
to defend the legality” of the agency’s own actions. Sierra Club v. Leavitt, 488
USCA Case #21-5200 Document #1918415 Filed: 10/15/2021 Page 21 of 25

F.3d 904, 911 (2007); see id. (rejecting Florida’s argument that federal defendant
“ha[s] an increased incentive to comprise with Sierra Club in settlement
discussions” because “nothing in the record supports the suggestion”).
Accordingly, Texas has not identified any legally protected interest that is not
adequately represented by the federal government’s defense of the CDC Order.5
II.
Permissive Intervention Should be Denied

This Court should likewise deny Texas’s request for permissive intervention.
Mot. 19. Permissive intervention requires a timely motion, EEOC v. National
Children’s Ctr., Inc., 146 F.3d 1042, 1046 (D.C. Cir. 1998), but Texas’s motion is
untimely for the reasons stated above. Regardless, “permissive intervention is an
inherently discretionary enterprise,” id., and because of Texas’s motion is
untimely, intervention would cause substantial prejudice to the federal government
(supra at 14-16), and the federal government adequately represents Texas’s interest
in this case, this Court should deny the motion for permissive intervention.

5 Contrary to Texas’s suggestion, Mot. 17-18, Fund for Animals v. Norton,
322 F.3d 728, 736 (D.C. Cir. 2003), does not establish a categorical rule that
government entities do not adequately represent the interests of putative
intervenors. Rather, this Court merely noted that courts had reached such a
conclusion in particular cases, not that it is invariably the case. Indeed, as noted
above, Texas concedes that until recently, it agreed that the federal government
was adequately defending its interests.
USCA Case #21-5200 Document #1918415 Filed: 10/15/2021 Page 22 of 25

CONCLUSION

For the foregoing reasons, Texas’s motion to intervene should be denied.
Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

SHARON SWINGLE

/s/ Joshua Waldman
JOSHUA WALDMAN
ASHLEY A. CHEUNG
Attorneys, Appellate Staff
Civil Division
U.S. Department of Justice
950 Pennsylvania Avenue NW
Washington, DC 20530
(202) 514-0236
joshua.waldman@usdoj.gov

October 2021
USCA Case #21-5200 Document #1918415 Filed: 10/15/2021 Page 23 of 25

CERTIFICATE OF COMPLIANCE
I hereby certify that this Opposition to the motion to intervene satisfies the
type-volume limitation in Rule 27(d)(2)(A) because it contains 4946 words. This
motion also complies with the typeface and type-style requirements of Rule
32(a)(5) and Rule 32(a)(6) because it was prepared using Microsoft Word 2016 in
Times New Roman 14-point font, a proportionally spaced typeface.

/s/ Joshua Waldman
JOSHUA WALDMAN

USCA Case #21-5200 Document #1918415 Filed: 10/15/2021 Page 24 of 25

CERTIFICATE OF SERVICE
I hereby certify that on October 15, 2021, I electronically filed the foregoing
with the Clerk of the Court for the United States Court of Appeals for the District
of Columbia Circuit by using the appellate CM/ECF system. Participants in the
case are registered CM/ECF users, and service will be accomplished by the
appellate CM/ECF system.

/s/ Joshua Waldman
JOSHUA WALDMAN

USCA Case #21-5200 Document #1918415 Filed: 10/15/2021 Page 25 of 25

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Defendants' Opposition to Texas Motion to Intervene — Huisha-Huisha v. Mayorkas (2021-10-14)

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