Texas Reply in Support of 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’ REPLY IN SUPPORT OF 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 
 
 
INTRODUCTION................................................................................................. 1 
I. As Texas’ Intervention Will Not Prejudice Either Party, It Is Timely. ............2 
II. 
Defendants Do Not Adequately Represent Texas’ Interests. ........................5 
III. There Is No Other Basis for Denying Intervention as of Right. ....................8 
IV. Permissive Intervention is Also Warranted. ...............................................10 
CONCLUSION .................................................................................................... 11 
 
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INTRODUCTION 
 
The Title 42 Process is fundamental to protecting the health and well-being of 
Texans and Texan communities during the ongoing COVID-19 pandemic. Multiple 
communities in Texas have declared states of disaster because of the ongoing surge 
of aliens crossing the border with high COVID-19 infection rates. Those aliens are 
overwhelming the resources of local communities, exposing Texans to a heightened 
risk of contracting COVID-19, and draining the State’s fisc in multiple ways. The 
Title 42 Process is designed to address these harms by preventing the flow of aliens 
from countries with high COVID-19 infection rates, and immediately expelling those 
aliens who do enter instead of permitting them to remain in Texas communities dur-
ing the pendency of lengthy asylum or removal proceedings.  
 
Although the federal Defendants are charged with implementing and defending 
the Title 42 Process, Texas has determined that only its presence in this case as a 
party can protect its interests for two reasons. First, it is well known that the federal 
government has used strategic settlement and other underhanded litigation maneu-
vers as a way of setting national immigration policy while bypassing the Administra-
tive Procedure Act. Indeed, these specific Defendants cooperated with friendly 
plaintiff groups to “instantly terminate [an immigration] rule with extreme preju-
dice” ensuring not only that the rule was eliminated, “but that it could effectively 
never, ever be resurrected, even by a future administration. All while avoiding the 
normal messy public participation generally required to change a federal rule.” City 
& Cnty. of San Francisco v. USCIS, 992 F.3d 742, 743 (9th Cir. 2021) (Van Dyke, J., 
dissenting). Second, the Defendants here have recently given significant indications 
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that they plan to do the same with the Title 42 Process, or that they may take other 
action in this litigation that adversely affects Texas. See Texas Mot. at 3-4.  
 
Defendants’ response to Texas’ Motion to Intervene only underscores these con-
cerns. It is unsurprising that Plaintiffs oppose intervention of a party who will vigor-
ously defend the legality of the Title 42 Process. But the Defendants oppose inter-
vention based on “prejudice” arguments do not pass the straight face test, such as 
that they had to spend time drafting an opposition to Texas’ intervention which they 
opted to draft notwithstanding that Texas takes Defendants’ side on the merits. See 
infra at 2-3. Intervention will not prejudice either party. And the remaining argu-
ments against intervention fail. 
I. As Texas’ Intervention Will Not Prejudice Either Party, It Is Timely. 
Texas explained in its Motion (at 13-15) that its intervention is timely for multi-
ple reasons. Most importantly, its intervention does not “unfairly disadvantage the 
original parties.” NRDC v. Costle, 561 F.2d 904, 908 (D.C. Cir. 1977). And prejudice 
is the touchstone of the timeliness inquiry. See Roane v. Leonhart, 741 F.3d 147, 151 
(D.C. Cir. 2014) (district court “abuse[d]” its discretion when it “lost sight of this 
fundamental principle” to deny intervention even though “no existing party would 
be prejudiced”). Neither party raises a response that has merit. 
A. Defendants raise three theories of prejudice. 
First, Defendants say (at 14-15) they “already” have been prejudiced, because 
they “divert[ed] time and attention away from drafting [their] opening [merits] 
brief … to respond to [Texas’] motion to intervene.” But that cannot be prejudice—
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if it were, then a party could defeat any intervention motion by the simple expedient 
of claiming prejudice from opposing it.  
Second, Defendants speculate (at 15) that prejudice could occur if Texas intro-
duces a wholly new issue to this case—specifically, whether “unaccompanied 
noncitizen children” should be subject to the Title 42 Process (they presently are 
not). But Defendants’ speculation is unfounded: While Texas intervenes (in part) to 
protect its right to litigate that issue in a different case, Texas v. Biden, 4:21-cv-00579-
P (N.D. Tex.), Texas has not and will not litigate that issue here.  
Third, Defendants say (at 16) they would be prejudiced because Texas could 
“seek divided oral argument time, file a petition for rehearing … or even petition the 
Supreme Court for a writ.” But those “practical result[s] of its interven-
tion … would have occurred whenever the [S]tate joined the proceedings.” Day v. 
Apoliona, 505 F.3d 963, 966 (9th Cir. 2007). As a result, they “do[] not cause preju-
dice” or render Texas’ intervention untimely. Id.; cf. Roane, 741 F.3d at 151 (preju-
dice involves such actions as “reopening discovery,” “revisit[ing] issues that had 
already been decided,” or presenting arguments that require new “factual develop-
ment”). 
B. Plaintiffs also offer two theories of prejudice; neither is legitimate. First, they 
claim (at 18-19) that intervention will be prejudicial because “Texas is relying on 
disputed factual assertions” that the State should have presented to “the District 
Court before that court ruled on Plaintiffs’ motion for an injunction.” It is hard to 
see how. The merits question presented in this appeal is whether the district court 
correctly held that the “Orders instituting the Title 42 Process exceed the statutory 
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authority granted by Congress pursuant to Section 265.” See District Court Op. at 
32. The answer to that purely legal question does not depend on “disputed factual 
assertions.”  
Second, Plaintiffs argue (at 16-17) that Texas is wrong to rely on Federal Rule of 
Appellate Procedure 15(d) because, if Texas moved in district court, then this Court 
would “defer to multiple aspects of the District Court’s ruling on that motion—in-
cluding its factual findings.” But this Court routinely rules on motions to intervene 
in the first instance under Rule 15(d) without the benefit of district court fact-finding. 
And sometimes district courts do not find any facts at all—this Court then just rules 
on intervention de novo, as it would here. See Karsner v. Lothian, 532 F.3d 876, 886 
(D.C. Cir. 2008) (“reviewing” intervention ruling “de novo because the district 
court failed to provide any findings for us to review” (quotations omitted)).The 
purely legal nature of the merits question presented indicates that Rule 15(d) and its 
default presumption that a motion to intervene in the review of an agency action is 
timely if made within 30 days after case opening in the court of appeals is fully appli-
cable here. See Mot. at 13-14.1 Because Texas intervened within 24 days its motion is 
presumptively timely without a showing of prejudice, which neither party has made. 
 
1 Notably, neither of the parties have explained why Rule 15(d)’s application to peti-
tions for review of agency action should prevent it from guiding the Court’s timeli-
ness analysis here. Nor could they: the Court is reviewing exactly the type of issue 
that it routinely sees in petitions for review (whether agency action comports with a 
statute). 
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II. Defendants Do Not Adequately Represent Texas’ Interests. 
Defendants’ only other argument for opposing Texas’ intervention as of right 
(at 16-21) is that Defendants adequately represent Texas’ interests. That is wrong. 
Even in the ordinary setting, the federal government frequently cannot be relied 
upon to adequately represent the interests of other parties. See Fund for Animals v. 
Norton, 322 F.3d 728, 736 n.9 (D.C. Cir. 2003) (collecting cases for this proposition). 
And here that problem is especially pronounced because Texas and Defendants are 
currently litigating whether the federal government is properly applying the Title 42 
Process. See Texas v. Biden, 4:21-cv-00579-P (N.D. Tex.). Indeed, they are at logger-
heads regarding almost every single other aspect of the Biden Administration’s fail-
ure to comply with federal immigration law. See, e.g., Texas v. United States, 1:18-cv-
68 (S.D. Tex.) (DACA); Texas v. Biden, 2:21-cv-67 (N.D. Tex.) (Migrant Protection 
Protocols); Texas v. United States, 6:21-cv-3 (S.D. Tex.) (pause on removals); Texas 
v. United States, 6:21-cv-16 (S.D. Tex.) (prioritization of removal); United States v. 
Texas, 3:21-cv-173 (W.D. Tex.) (Texas authority to restrict transport of aliens). This 
more than suffices to meet Texas’ “minimal” burden of showing that Defendants’ 
representation “may be” inadequate. Hodgson v. United Mine Workers of Am., 473 
F.2d 118, 130 (D.C. Cir. 1972); see also Texas Mot. at 16 (collecting cases).  
Defendants respond (at 17-18) by sidestepping the fact that Texas and Defend-
ants are in an adversarial posture on nearly every aspect of border security, and argue 
that they represent Texas’ interests with sustaining the lawfulness of the Title 42 
Process because they have defended the program in this litigation (for now). But 
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Texas provided ample reasons in its Motion why it believes that defense may immi-
nently come to an end: Defendants have said they are actively considering exemp-
tions to the Title 42 Process, Defendants have said they do not believe they have any 
obligation to use the Title 42 Process, and less than three weeks ago Defendant 
Mayorkas promulgated guidance indicating that aliens should not be removed from 
the country unless special aggravating circumstances are present beyond unlawful 
presence. See Texas Mot. at 3-4.2 The writing is on the wall. 
Even if Defendants have not yet taken action in this case that directly undermines 
Texas’ interests (which is debatable), the Administration has proven that it may 
change its mind at any day; Texas should not be forced to wait until that occurs. For 
example, their “defense” of the previous administration’s “Public Charge” rule 
consisted of simultaneously moving to dismiss appeals in every pending challenge to 
the rule without notice to any potentially interested party. The Seventh Circuit 
granted the motion to dismiss and issued its mandate on the same day, cementing in 
place a district court’s nationwide injunction. See Cook County v. Wolf, No. 20-3150, 
ECF Nos. 23-25 (7th Cir.). Two days later, Texas (along with several other affected 
states) moved to intervene and for a recall of the mandate. But the same Defendants 
here opposed that intervention and the Seventh Circuit denied the motions. Id. ECF 
Nos. 26-27. When the States then sought—with the permission of the Supreme 
 
2 Defendants (at 12-14) dispute Texas’ characterization of these actions and contend 
that none call into question the adequacy of their representation. But assuming De-
fendants’ characterizations are correct (they are not), Texas need not show Defend-
ants’ representation “is inadequate, but … merely that it may be” Hodgson, 473 F.2d 
at 130. Texas has easily carried that burden.  
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Court—to intervene in the Northern District of Illinois, the request was denied on 
the ground that they should have known from President Biden’s campaign promises 
that his administration would abandon the rule. Cook County v. Mayorkas, 2021 WL 
3633917 (Aug. 17, 2021). Texas is trying to prevent a replay here. 
Defendants also wrongly claim (at 18) that they adequately represent Texas’ in-
terest in protecting the health and well-being of its citizens from COVID-19. Even if 
Defendants were fully invested in Texans’ health (and their method of enforcing Ti-
tle 42 suggests they are not), Defendants have stated that they are considering a host 
of other interests including Mexico’s interests and stated policies about what aliens 
Mexico will accept to be “return[ed] via the Title 42 expulsion process.” Public 
Health Reassessment and Order, 86 Fed. Reg. 42,828, 42,837 (Aug 5, 2021). Other 
countries apparently impose logistical requirements for the return of aliens (i.e., 
“consular interviews”) that inconvenience Defendants. Id. Defendants have 
demonstrated that they will put that inconvenience above fully implementing the Ti-
tle 42 Process. That Texas puts the health and well-being of its citizens above that 
inconvenience alone warrants intervention. See Kane Cty., Utah v. United States, 928 
F.3d 877, 894 (10th Cir. 2019) (granting intervention even where defendant United 
States shared interests with intervenor because United States’ “objectives involve a 
much broader range of interests, including competing policy, economic, political, le-
gal, and environmental factors” (emphasis added)).3 
 
3 In addition, Texas is aware of D.C. Circuit Rule 28(d) and will not present duplica-
tive legal argument in its merits brief.  
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III. There Is No Other Basis for Denying Intervention as of Right. 
Defendants do not assert that any other reasons prevent Texas’ intervention. 
Cf. Defs’ Opp. at 16-17 (not arguing, but “not conced[ing]” the other intervention 
factors). And all of Plaintiffs’ remaining arguments fail. 
 
A. Texas has standing. Texas’ Motion demonstrated (at 12-13) that Texas has 
multiple forms of standing, including most plainly a “pocketbook injury that is in-
curred by the [S]tate itself.” Air All. Houston v. EPA, 906 F.3d 1049, 1059-60 (D.C. 
Cir. 2018). Plaintiffs try (at 11-12) to manufacture a factual dispute about the number 
of aliens crossing the border and how many are infected with COVID-19 to call 
Texas’ standing into question. But Defendants recently admitted that “the United 
States is currently experiencing … a migratory surge of noncitizens attempting to 
enter the country,” 86 Fed. Reg. at 42,835, and that “[t]he rates at which encoun-
tered 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. Defendants further admit they are “heavily reliant on 
local healthcare systems for the provision of more extensive medical services to 
noncitizens.” 86 Fed. Reg. at 42,837. see also Texas Mot. at 9-10. And even if this 
surge did not exist, Texas’ burden of treating even a relatively small additional num-
ber (if Plaintiffs succeed in dismantling the Title 42 Process) would suffice for stand-
ing. See Czyzewski v. Jevic Holding Corp., 173 S. Ct. 973, 983 (2017) (“For standing 
purposes, a loss of even a small amount of money is ordinarily an ‘injury.’”). 
B. Texas’ interests would be impaired if Plaintiffs succeed. Plaintiffs claim (at 
14-15) Texas does not need to intervene to protect its interests because, in their view 
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(at 14-15), Texas lacks “concern regarding the health of Texans statewide.” Plain-
tiffs’ basis for this inflammatory claim is apparently that Texas, instead of using co-
ercive power, has permitted individual citizens to make their own decisions about 
vaccination and masks. It has also taken such steps, among numerous other ways it 
has protected its citizens, as being the first State to “open[] free monoclonal antibody 
centers to treat” COVID-19 patients.4 See also FDA Press Release, Coronavirus 
(COVID-19) Update: FDA Authorizes Additional Monoclonal Antibody for Treatment 
of COVID-19 (May 26, 2021) (FDA discussion of significant monoclonal antibody 
efficacy against COVID-19).5 There are hundreds of other examples of the State pro-
tecting Texans’ health and well-being throughout the pandemic. See Office of the 
Governor, Governor Abbott’s Proactive Responses to the Coronavirus Threat (Oct. 6, 
2021) (collecting examples).6  
C. Finally, Texas satisfies any applicable standard for intervention on appeal. 
Plaintiffs contend (at 3-10) that Texas’ Motion should be judged under an exacting 
standard because it is being made on appeal. But the circumstances of this case, and 
the clear lack of prejudice, would satisfy any intervention standard. In what appears 
to be its lone reported opinion on the subject, this Court did express that intervention 
 
4 Robert Towey, Florida and Texas open Covid antibody treatment centers as delta surge 
overwhelms 
hospitals, 
CNBC 
(Aug. 
19, 
2021), 
https://www.cnbc.com/2021/08/19/florida-and-texas-open-covid-antibody-treat-
ment-centers-as-delta-surge-overwhelms-hospitals.html. 
5 https://www.fda.gov/news-events/press-announcements/coronavirus-covid-19-
update-fda-authorizes-additional-monoclonal-antibody-treatment-covid-19. 
6 
https://gov.texas.gov/uploads/files/press/Governor-Abbott-Proactive-Re-
sponse.pdf. 
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should be limited to “exceptional case[s] for imperative reasons.” Amalgamated 
Transit Union Int’l v. Donovan, 771 F.2d 1151, 1152 (D.C. Cir. 1985). But it did so in 
a case where the motion was filed after the Court had rendered its decision, based on 
a concern that such “belated intervention” will ordinarily be “unduly disruptive and 
place[] an unfair burden on the parties to the appeal.” Id. at 1553. In that same opin-
ion, the Court suggested that the movant instead “could have moved to intervene 
when [a party] appealed.” Id. at 1554. And as explained supra at 2-4, concerns re-
garding prejudice do not exist here, so any presumption that may flow from such 
timing does not apply. Indeed, multiple courts of appeal have granted intervention 
in far later postures than Texas’ is being made here. See, e.g., Apoliona, 505 F.3d at 
964-65 (granting motion so that intervenor can file “petition for rehearing or for re-
hearing en banc”); Peruta v. Cty. of San Diego, 824 F.3d 919, 940 (9th Cir. 2016) 
(same); see also Ne. Ohio Coal. for Homeless v. Blackwell, 467 F.3d 999, 1009 (6th Cir. 
2006); Duplan v. Harper, 188 F.3d 1195, 1199 (10th Cir. 1999). This Court should do 
the same. 
IV. Permissive Intervention is Also Warranted. 
In the alternative, and for materially the same reasons as set forth above, Texas 
is entitled to permissive intervention under Federal Rule of Civil Procedure 24(b). 
See Mot. at 19. 
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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).  
 
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 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)(C) and 32(f) and (g) 
because it contains 2,554 words, excluding exempted portions, according to Mi-
crosoft Word. 
 
 
 
 
 
 
 
/s/ Ryan S. Baasch                     
 
 
 
 
 
 
 
Ryan S. Baasch 
 
CERTIFICATE OF SERVICE 
 
On October 18, 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 
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