Defendants' Opposition to Texas Motion to Participate in Oral Argument — Huisha-Huisha v. Mayorkas (2021-12-02)

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[ORAL ARGUMENT SCHEDULED JANUARY 19, 2022] 
 
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,  
 
v.  
 
ALEJANDRO MAYORKAS, Secretary of Homeland 
Security, et al.,  
 
Defendants-Appellants. 
 
No. 21-5200 
 
DEFENDANTS’ OPPOSITION TO AMICUS THE STATE OF TEXAS’S  
MOTION TO PARTICIPATE IN ORAL ARGUMENT 
BRIAN M. BOYNTON 
Acting Assistant Attorney General 
 
MATTHEW M. GRAVES 
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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Having been denied leave to intervene on appeal, the State of Texas now 
seeks to participate in the oral argument as amicus curiae.  Under D.C. Circuit Rule 
34(e), however, an amicus “will not be permitted to participate in the oral 
argument” absent “extraordinary reasons.”  Texas has not met that standard. 
1. Texas argues that this case presents a novel question of statutory 
interpretation, Mot. 3, but that is true in many cases and does not constitute an 
extraordinary reason for Texas to participate at oral argument or distinguish Texas 
from the multiple other amici that have filed briefs in this case.  Amadis v. DOJ, 
No. 19-5088, does not support Texas’s argument either; in that case, neither party 
opposed the motion to participate in the oral argument. 
Texas contends that it will focus on “other sources of expulsion authority,” 
Mot. 3, by which it presumably means the State’s argument that “the Executive 
* * * has always possessed expulsion authority under Article II” and thus the 
government “does not need to rely on Section 265 in order to expel aliens.”  Texas 
Amicus Br. 15.  But those other expulsion authorities are not at issue in this appeal:  
The CDC Order challenged by the plaintiffs in this case expressly invokes only the 
government’s statutory authority under the Public Health Service Act (including 42 
U.S.C. § 265) and its implementing regulations, 1 App. 149; the district court 
enjoined the government “from applying the Title 42 Process,” 1 JA 68; and the 
district court’s reasoning relied only on its interpretation of the statutory authority 
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conferred by Section 265, 1 JA 101-112.  Moreover, presenting alternative 
arguments not raised by the parties is not an “extraordinary reason” justifying an 
amicus’ participation in oral argument. 
Texas’s reliance (Mot. 3) on Klayman v. Obama, No. 14-5004, is misplaced.  
One party took no position on the motion of the Electronic Frontier Foundation and 
the ACLU to participate in the oral argument, and the other party opposed only to 
the extent it would reduce his own argument time.  See id., Corrected Motion of 
Amicus Curiae the Electronic Frontier Foundation at 1 (Sept. 19, 2014); id., 
Response of Klayman Appellees (Sept. 19, 2014).  Another amicus (Center for 
National Security Studies) also moved to participate in the oral argument to 
“present [] narrower, statutory grounds on which this Court can resolve this 
matter,” which issues were “fully briefed and argued” below and which might help 
avoid “ruling on the constitutional issues presented by the parties.”  See id., Motion 
of Amicus Curiae Center for National Security Studies 2-3 (Sept. 26, 2014).  
Texas’s motion does the opposite, asking to participate in oral argument to 
introduce constitutional Article II issues in a case that would otherwise focus on a 
question of statutory interpretation, and to discuss issues that were not briefed or 
argued below. 
2. Texas asserts that it has a “unique” interest in the subject of this litigation 
and the outcome of this case.  Mot. 4.  But the federal government’s defense of the 
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CDC Order and its Section 265 authority already adequately advances those same 
interests.  This Court has already determined that Texas did not meet the standard 
for intervention on appeal, which considers, inter alia, whether the putative 
intervenor’s interests are adequately represented by other parties in the litigation.  
See Order, Huisha-Huisha v. Biden, No. 21-5200 (Oct. 21, 2021); Defenders of 
Wildlife v. Persiacepe, 713 F.3d 1317, 1322-23 (D.C. Cir. 2013).  
Texas’s intent to “address[]” its “multiple litigations” in other pending 
district court cases (Mot. 5) is a reason to deny the motion, not to grant it.  Texas’s 
positions in those other pending litigation matters are not relevant to the question 
of whether Section 265 authorizes expulsion, and interjecting those issues into this 
case would force the government to simultaneously seek reversal of the 
preliminary injunction while also refuting Texas’s litigation position in different 
district court matters.  Cf. Texas Reply in support of Mot. to Intervene at 3 
(asserting that it “will not litigate” issues in other immigration-related matters were 
it permitted to intervene here). 
3. Texas argues that it “will suffer outsized impacts” if the preliminary 
injunction is not vacated.  Mot. 5.  But the federal government’s defense of the 
CDC Order and its arguments for reversal already protect those interests without 
the need for additional participation from the State at oral argument.  Moreover, 
many cases involve issues where the outcome has significant consequences for 
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amici, yet that alone does not present “extraordinary reasons” for permitting those 
amici to participate at oral argument. 
CONCLUSION 
 
For the foregoing reasons, Texas’s motion to participate in oral argument 
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 
 
 
 
December 2021
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CERTIFICATE OF COMPLIANCE 
I hereby certify that this Opposition to the motion to participate in oral 
argument satisfies the type-volume limitation in Rule 27(d)(2)(A) because it 
contains 766 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 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on December 3, 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 #1925223            Filed: 12/03/2021      Page 7 of 7

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