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

Record facts

Full text

ORAL ARGUMENT NOT YET SCHEDULED 
__________________________________________________________________ 
 
No. 22-5325 
__________________________________________________________________ 
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 STATES’ MOTION TO 
INTERVENE AS INTERVENOR-DEFENDANTS 
_______________________________________________________________ 
 
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 
skang@aclu.org 
cwofsy@aclu.org 
mrussell@aclu.org 
Lee Gelernt 
Omar Jadwat 
Daniel A. Galindo 
American Civil Liberties Union 
Foundation, Immigrants’ Rights 
Project 
125 Broad Street, 18th Floor 
New York, NY 10004 
(212) 549-2660 
lgelernt@aclu.org 
ojadwat@aclu.org 
dgalindo@aclu.org 
 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 1 of 29

 
 
mngo@aclu.org 
 
Bernardo Rafael Cruz  
Adriana Cecilia Pinon  
American Civil Liberties Union 
Foundation of Texas, Inc. 
5225 Katy Freeway, Suite 350 
Houston, Texas 77007 
(713) 942-8146 
brcruz@aclutx.org 
apinon@aclutx.org  
 
Karla M. Vargas 
Texas Civil Rights Project 
1017 W. Hackberry Ave. 
Alamo, Texas 78516 
(956) 787-8171 
 
Blaine Bookey 
Karen Musalo 
Neela Chakravartula 
Melissa Crow (D.C. Cir. Admission 
Pending) 
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) 
5121 Crestway Drive, Suite 105 
San Antonio, TX 78239 
(210) 960-3206 
 
 
 
 
Counsel for Plaintiffs-Appellees 
 
 
 
 
 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 2 of 29

i 
 
GLOSSARY 
 
Abbreviation 
 
Description 
 
 
CDC 
Centers for Disease Control and Prevention 
 
Intervention 
Mot. 
States’ Notice Regarding Pending Motion to Intervene and 
Alternative Renewed Motion to Intervene (Dec. 9, 2022). 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 3 of 29

ii 
 
CORPORATE DISCLOSURE STATEMENT 
 
 
Pursuant to Fed. R. App. P. 26.1 and Cir. R. 26.1, Counsel for Plaintiffs-
Appellees state that they do not have parent corporations.  No publicly held 
corporation owns 10 percent or more of any stake or stock in any of the Counsel for 
Plaintiff-Appellees. 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 4 of 29

1 
 
INTRODUCTION 
The States’ effort to intervene in this longstanding Title 42 challenge should 
be denied. 
First, the States are wrong that their pending district court intervention 
motion was “transferred by operation of law” to this Court once Defendants 
appealed.  Perhaps recognizing that their district court motion is not before this 
Court, the States alternatively request to intervene on appeal, but such a motion is 
subject to a heightened standard.  See Humane Soc’y of the U.S. v. U.S. Dep’t of 
Agric., __ F. 4th ___, 2022 WL 17411257, at *1 (D.C. Cir. Dec. 5, 2022) (Tatel, J., 
concurring in denial of intervention).  The States cannot satisfy even the regular 
intervention standard, much less a heightened standard. 
Second, the States lack standing.  This Court has repeatedly rejected similar 
theories of standing based on conjecture and downstream consequences of the 
federal government’s policies.  See, e.g., Arpaio v. Obama, 797 F.3d 11, 14 (D.C. 
Cir. 2015) (immigration challenge). 
Third, even if they had standing, the States’ “eleventh-hour motion” is 
“untimely.”  Humane Soc’y, 2022 WL 17411257, at *2.  Indeed, in October 2021, 
one of the proposed intervenors here, Texas, sought intervention before this Court 
and expressly stated that it believed the federal government was not adequately 
representing its interests in this Title 42 litigation.  That motion was denied under 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 5 of 29

2 
 
the heightened standard applicable to intervention on appeal, yet none of the States 
here sought intervention below for a year, until the district court entered summary 
judgment, forcing extraordinarily expedited briefing, precluding factual 
development, and creating the threat of an administrative stay.   
 
Nor can the States establish inadequate representation.  Their argument 
below relied on the prediction that Defendants would not appeal—but they now 
have.  And these very States took the position in their own Title 42 litigation that a 
putative intervenor was adequately represented by the federal government despite 
the government’s choice not to seek a stay pending appeal. 
BACKGROUND 
This Court has previously described the Title 42 policy and its devastating 
impact on noncitizens.  See Huisha-Huisha v. Mayorkas, 27 F.4th 718, 725-26, 
733-35 (D.C. Cir. 2022).  In short, CDC established the Title 42 policy in March 
2020, purportedly as an emergency measure to address COVID-19 in the earliest 
days of the pandemic.  Defendants have since used it to expel noncitizens arriving 
at the border “without allowing them to apply for asylum”—forcing them to “walk 
the plank” into extraordinary danger of murder, rape, assault, and kidnapping.  Id. 
at 726, 733. 
In January 2021, Plaintiffs initiated this challenge to the Title 42 policy.  In 
September 2021, the district court preliminarily enjoined the application of the 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 6 of 29

3 
 
Title 42 policy on the ground that the policy was not statutorily authorized, and 
Defendants appealed and obtained a stay. 
In October 2021, Texas moved to intervene before this Court.  Motion to 
Intervene as Intervenor-Defendant, Huisha-Huisha v. Mayorkas, No. 21-5200 
(D.C. Cir. Oct. 11, 2021).  Importantly, Texas stated that it “no longer believes 
Defendants can or will adequately represent the State’s significant interests in this 
case.”  Id. at 10.  Plaintiffs responded that Texas should not be allowed to 
intervene for the first time on appeal, noting Texas’s reliance on a number of 
untested and unfounded factual assertions regarding the State’s claimed injuries.  
See generally Plaintiffs-Appellees’ Opposition, Huisha-Huisha, No. 21-5200 (D.C. 
Cir. Oct. 15, 2021).  This Court denied Texas’s motion, finding Texas had not 
satisfied the heightened “standards for intervention on appeal.” Order at 1, Huisha-
Huisha, No. 21-5200 (D.C. Cir. Oct. 26, 2021). 
Ultimately, this Court affirmed the preliminary injunction in part and 
remanded for resolution of the merits.  The Court also pointedly noted that the 
Title 42 policy appeared to be a “relic” and that on remand the district court should 
address “Plaintiffs’ claim that the § 265 [Title 42] Order is arbitrary and 
capricious,” which the district court had not yet considered.  Huisha-Huisha, 27 
F.4th at 734-35; see also id. at 735 (observing that the policy appeared not to serve 
“any purpose”).  
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 7 of 29

4 
 
CDC subsequently issued an order on April 1, 2022, terminating all prior 
Title 42 orders and seeking to end the policy.  A number of States—including all 
the proposed intervenors here—challenged CDC’s termination order in Louisiana.  
The court there preliminarily enjoined CDC’s termination order on notice-and-
comment grounds, Louisiana v. CDC, __ F. Supp. 3d ___, 2022 WL 1604901 at 
*23 (W.D. La. May 20, 2022).  The federal government appealed, but did not seek 
a stay, and the appeal remains pending.  No. 22-30303 (5th Cir.). 
On May 23, 2022, this Court remanded this case to the district court.  The 
litigation proceeded without any intervention attempt by the States.  On August 15, 
2022, Plaintiffs filed a motion for partial summary judgment on arbitrary-and-
capricious grounds, of which the federal government specifically notified the 
States the next day, Notice at 7 n.2, ECF No. 154, Louisiana, No. 22-885 (W.D. 
La. Aug. 16, 2022), and which the district court granted on November 15, 2022, 
ECF No. 165.1 
On Defendants’ unopposed motion, the district court stayed its judgment for 
five weeks, to give Defendants time to transition from the Title 42 policy to normal 
“Title 8” immigration processing.  The stay is set to end at 12:01 a.m., December 
21, 2022. 
                                                 
1 Except where otherwise noted, ECF citations are to proceedings below, and 
page numbering refers to ECF pagination. 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 8 of 29

5 
 
On November 21, 2022, the States filed a motion to intervene in the district 
court—over a year after Texas’s attempt to intervene on appeal was denied, nearly 
eight months after CDC sought to end the Title 42 policy, and after the district 
court granted summary judgment.  A central basis for the States’ motion was the 
prediction that Defendants would not appeal the district court’s judgment.  ECF 
No. 168 at 20. 
On December 7, 2022, Defendants filed their notice of appeal.  On 
December 9, 2022, the States filed a “Notice” asking this Court to treat their 
district court intervention motion as having been automatically transferred to this 
Court, styling it in the alternative as a motion to intervene on appeal.  States’ 
Notice Regarding Pending Motion to Intervene and Alternative Renewed Motion 
to Intervene (“Intervention Mot.”).  On December 12, 2022, the States filed a 
motion in this Court to stay the district court’s judgment and injunction. 
ARGUMENT 
I. 
THE STATES’ MOTION TO INTERVENE IS SUBJECT TO A 
HEIGHTENED STANDARD. 
 
The States are wrong that their district court motion is pending before this 
Court.  Most circuits have held that the filing of a notice of appeal deprives district 
courts of jurisdiction to decide an intervention motion, see Intervention Mot. 2, 
though this Court has not decided this question, see Associated Builders & 
Contractors, Inc. v. Herman, 166 F.3d 1248, 1256 (D.C. Cir. 1999).  But even if 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 9 of 29

6 
 
the district court lost jurisdiction over the intervention motion, the States cite no 
authority whatsoever for their novel assertion that the motion “was transferred by 
operation of law to this Court” once Defendants appealed.  Intervention Mot. 3. 
Indeed, none of their cited cases suggest that an intervention motion filed 
below was automatically “transferred” to the court of appeals, and none 
adjudicated the district court motion in the first instance.  Each decision instead 
reviewed a ruling below and held that the district court lacked jurisdiction to grant 
intervention once an appeal had been filed.  Taylor v. KeyCorp, for example, 
involved a motion to intervene after final judgment.  680 F.3d 609, 616 (6th Cir. 
2012).  The court of appeals affirmed the district court’s denial of intervention 
because it had lost jurisdiction once the appeal was filed.  Id. at 617.  Yet on the 
States’ theory, the circuit in that case should instead have itself entertained the 
intervention motion because it was, in their view, “transferred by operation of law” 
to the Circuit.   
Accordingly, the only motion concerning intervention currently pending 
before this Court is the States’ alternative request to intervene on appeal.  
Intervention Mot. 3-5.  This Court will “grant motions to intervene at the appellate 
stage only in ‘exceptional case[s] for imperative reasons.’”  Humane Soc’y, 2022 
WL 17411257, at *1 (quoting Amalgamated Transit Union Int’l, AFL-CIO v. 
Donovan, 771 F.2d 1551, 1552 (D.C. Cir. 1985) (per curiam)).  While here the 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 10 of 29

7 
 
States did seek intervention first in district court, cf. Donovan, 771 F.2d at 1552, 
the same considerations underlying that demanding standard apply because the 
States waited until the last minute to seek intervention below.  “It would be entirely 
unfair, and an inexcusable waste of judicial resources, to allow a potential 
intervenor to lay in wait until after the parties and the trial . . . court[] have incurred 
the full burden of litigation before deciding whether to participate in the judicial 
proceedings,” id. at 1553, as the States did here, see infra.   
Regardless, the States’ motion fails under any standard. 
II. 
INTERVENTION SHOULD BE DENIED. 
 
A. The States Lack Standing. 
Standing is a prerequisite for intervention, even for Defendant intervenors.  
Deutsche Bank Nat’l Tr. Co. v. FDIC, 717 F.3d 189, 193 (D.C. Cir. 2013).  
Because the States cannot establish the required “showing of injury-in-fact, 
causation, and redressability,” id., their attempt to “influence the course of 
litigation” based on “philosophic” objections should be rejected, id. at 195 
(Silberman, J., concurring). 
First, the States’ standing theories are inconsistent with this Court’s 
precedents.  Their core claim is that the replacement of Title 42’s public health 
expulsions with statutory immigration procedures will lead to more undocumented 
noncitizens in these States, imposing downstream costs sometime in the future.  
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 11 of 29

8 
 
ECF No. 168 at 21-24.  “If such allegations were routinely accepted as sufficient to 
confer standing, courts would be thrust into a far larger role of judging 
governmental policies than is presently the case, or than seems desirable.”  Arpaio, 
797 F.3d at 25 (cleaned up).   
In Arpaio, this Court rejected a strikingly similar argument alleging 
downstream increases in crime, holding that “the likelihood of any injury actually 
being inflicted is too remote to warrant the invocation of judicial power.”  Id. at 22 
(cleaned up); see also Pennsylvania v. Kleppe, 533 F.2d 668, 672 (D.C. Cir. 1976) 
(downstream State fiscal impacts that are “an incidental result of the challenged 
action” insufficient for standing).  As Chief Judge Sutton recently said in an 
immigration case rejecting standing: “Are we really going to say that any federal 
regulation of individuals . . . that imposes peripheral costs on a State creates a 
cognizable Article III injury for the State to vindicate in federal court?  If so, what 
limits on state standing remain?”  Arizona v. Biden, 40 F.4th 375, 386 (6th Cir. 
2022). 
The States attempted below to distinguish Arpaio on the ground that the 
challenged policies there did not apply to those noncitizens who would supposedly 
migrate as a result of the policy.  ECF No. 177 at 17.  But the Court rejected 
standing even “were we to ignore” that “disconnect,” because the theory that the 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 12 of 29

9 
 
policy change would cause anyone to come, or impose any costs, amounted to 
“speculation.”  797 F.3d at 20-22.  So too here.2   
The States also lean heavily on two district courts in the Fifth Circuit that 
found State standing to challenge the termination and limitation of Title 42.  ECF 
No. 168 at 20.  But the seemingly limitless state standing doctrine those decisions 
espoused is an outlier.  See Louisiana, 2022 WL 1604901, at *13 (noting that 
“Arizona v. Biden is inconsistent with” the Fifth Circuit’s approach).3   
Second, even if such tangential costs could establish standing under this 
Court’s cases, the States’ evidence falls short.   
Title 42’s Impact on Migration.  It is speculative at best that ending the 
policy will increase migration, much less increase it beyond the short term.  Even 
assuming that Title 42’s cessation “might” impact “the complex decisions made by 
non-citizens” before “risk[ing] life and limb to come here,” “so, too, might the 
myriad economic, social, and political realities in the United States and in foreign 
nations.”  Arpaio, 797 F.3d at 21; see also ECF No. 118-23 at 1 (expert 
                                                 
2 The States also suggested below that Arpaio was overruled by Department 
of Commerce v. New York, 139 S. Ct. 2551 (2019).  But that case involved “direct 
loss of federal funds that are distributed based on state population” unlike the 
indirect and speculative harms asserted here.  Arizona, 40 F.4th at 386. 
 
3 The Supreme Court has granted certiorari to assess, inter alia, the Fifth 
Circuit’s application of state standing in an immigration case.  United States v. 
Texas, No. 22-58 (argued Nov. 29, 2022). 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 13 of 29

10 
 
declaration).  And the States’ evidence is flimsy at best.  They lean heavily on a 
deposition of one of the defendants, Raul Ortiz, but all his testimony says is that a 
change in U.S. government operations had an impact, as filtered through “social 
media,” “word of mouth,” and “smuggling organizations,” on the specific parts of 
the border where noncitizens sought to cross.  ECF No. 168-12 at 5.  That tenuous 
claim does nothing to show that Title 42’s cessation will draw more migrants to the 
country.4   
Moreover, the premise of this argument—that Title 42 is a more effective 
deterrent of migration than statutory immigration procedures—is highly suspect.  
Because Title 42 generally involves expulsion to Mexico and carries no legal 
consequences, noncitizens may seek safety by “cross[ing] the border multiple 
times, sometimes 10 times or more.”  Huisha-Huisha v. Mayorkas, 560 F. Supp. 3d 
146, 176 (D.D.C. 2021) (cleaned up).  By contrast, Title 8 procedures involve 
removal backed by significant criminal and civil penalties for those who 
unlawfully reenter—which the federal government has stated “has a greater 
deterrent effect than expelling a migrant to Mexico under Title 42.”  Opposition to 
Motion for TRO at 1, ECF No. 27, Louisiana, No. 22-885 (W.D. La. Apr. 22, 
                                                 
4 The States repeatedly warn of a “possible” increase in border crossings to 
18,000 per day—although the newspaper articles they cite indicate this was a 
“worst-case scenario” in May for “planning” purposes, see ECF No. 168-4 at 81, 
and given seasonal migration fluctuation officials are now “forecasting fewer” 
arrivals, Rogers Decl., Doc. No. 1977323 at 14, 19.   
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 14 of 29

11 
 
2022).  Indeed, the States have emphasized the high number of noncitizens arriving 
at the border while Title 42 is in effect, which only shows the policy has not been 
deterring migration. 
And any impact from ceasing Title 42 expulsions of children (namely 
alleged educational costs) is even more speculative, because unaccompanied 
children are already exempted from Title 42, and a large majority of children 
arriving with parents have been processed under Title 8 for well over a year.  See 
Huisha-Huisha, 560 F. Supp. 3d at 175. 
Increased Costs to the States.  Even if in the short-term more noncitizens 
obtain entry for days or weeks as the government transitions to ordinary Title 8 
processes, the impact on costs like education and healthcare is speculative.  The 
States offer no evidence that a brief spike would increase costs. 
Indeed, it is highly speculative that any additional noncitizens who arrive 
will create the costs the States complain of, because they may not remain in the 
country.  Which Title 8 procedures will be used, and what the outcome of those 
procedures will be (including deportation), involve many contingencies and 
intervening discretionary decisions not at issue here—rendering the States’ 
standing even more speculative.  See California v. Texas, 141 S. Ct. 2104, 2117 
(2021) (rejecting “difficult to establish” standing theory that “depends upon the 
decision of an independent third party”) (cleaned up); Clapper v. Amnesty Int’l 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 15 of 29

12 
 
USA, 568 U.S. 398, 412-13 (2013) (rejecting standing theory predicated on 
speculation regarding government’s choices among its legal authorities).   
Moreover, the States complain about undocumented immigrants, but Title 8 
procedures (unlike Title 42) can lead to immigration status or result in deportation.  
It is speculative that Title 8 processing will lead to more long-term presence of 
undocumented noncitizens, rather than more noncitizens receiving lawful status or 
fewer noncitizens present due to removal orders. 
 
Similarly, it is “pure speculation,” Arpaio, 797 F.3d at 22, to assume a 
negative impact on the States’ budgets, regardless of how many migrants remain in 
their particular states.  The States rely on general statistics, but costs, like crime, “are 
affected by numerous factors, such as the local economy, population density, access 
to jobs, education, and housing, and public policies that directly and indirectly 
affect” access to and use of government services.  Id. 
The States’ remaining ancillary harms are likewise speculative or incorrect.  
The States say that they spend money to rescue migrants entering between ports, 
ECF No. 168 at 22-23, but Title 42 bans access to regular processing at ports of 
entry, which may encourage noncitizens to cross between ports—and again, Title 
42 leads to repeated crossings.  The States point to the cost of healthcare provided 
to noncitizens in ICE custody, id. at 23-24, but how Title 42’s end might impact the 
number of noncitizens in ICE custody (rather than released or deported) is subject to 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 16 of 29

13 
 
independent decisions by federal authorities as to whether, and where, to detain 
noncitizens, see California, 141 S. Ct. at 2117. 
The States assert that this Court should accept these theoretical harms because 
a district court in Louisiana accepted them, and the federal government did not 
submit contrary evidence in that case.  Intervention Mot. 4 n.3.   But Plaintiffs here 
were not parties to that case.  Moreover, as explained below, the States’ delay in 
seeking intervention in this case, and the threat of seeking an administrative stay in 
the event of delays, deprived Plaintiffs of any opportunity to probe the States’ 
evidence.  That prejudice is another reason to deny intervention.5  And even the 
Louisiana district court declined to credit the States’ speculative allegations of 
increased criminal activity.  Louisiana, 2022 WL 1604901, at *15. 
Finally, the States argue in the alternative that they need not put forth any 
evidence, because they have standing based merely on the fact that the preliminary 
injunction in Louisiana would be rendered moot if the district court’s ruling in this 
case is upheld.  ECF No. 177 at 11.  But no amount of baseless accusations of 
                                                 
5 Below, the States suggested that the loss of this opportunity did not matter 
because the district court was required to accept the States’ assertions as true.  ECF 
No. 177 15-16.  That is wrong.  While intervention can “usually” be decided based 
on allegations and intervenors’ evidence, courts can of course consider “any 
responses” and contrary evidence.  Foster v. Gueory, 655 F.2d 1319, 1324 (D.C. 
Cir. 1981).  And courts have discretion to order jurisdictional discovery regarding 
standing; indeed, these States are currently engaged in such discovery elsewhere.  
See Arizona v. Garland, No. 22-1130 (W.D. La.).  Here, moreover, the States’ 
assertions are especially questionable. 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 17 of 29

14 
 
“collusion” alters the reality that the Louisiana case and this case address entirely 
different CDC orders.  The Louisiana injunction challenges CDC’s memorandum 
terminating the Title 42 policy for failure to engage in notice-and-comment 
rulemaking; here, the district court found the underlying policy unlawful.  Abiding 
by the district court’s judgment here does not involve enforcing the termination 
memorandum.  The States insist they have standing to defend the “spirit” of their 
injunction.  Id. at 14.  But they cite nothing showing that the “spirit” of their 
injunction can confer standing.   
Special State Solicitude: The States’ claim to “special solicitude in the 
standing analysis” under Massachusetts v. EPA, 549 U.S. 497, 519-20 (2007), is 
unavailing.  This Court has emphasized the “uniqueness” of the circumstances in 
Massachusetts and its “limited holding.”  Ctr. for Biological Diversity v. U.S. Dep’t 
of Interior, 563 F.3d 466, 476-77 (D.C. Cir. 2009); see Arizona, 40 F.4th at 385-86 
(rejecting application of Massachusetts because “indirect fiscal burdens” caused by 
federal immigration policy are not “uniquely sovereign harm[s]”).  And unlike here, 
Massachusetts did not involve intervention as a defendant.  In any event, 
Massachusetts does not alter the requirement to show a concrete injury in fact, which 
the States have not shown.  See Ctr. for Biological Diversity, 563 F.3d at 477. 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 18 of 29

15 
 
B. The States Are Not Entitled To Intervene As Of Right Even If They 
Have Standing. 
 
 
To intervene as of right, the States must additionally satisfy “all four 
elements” of Federal Rule of Civil Procedure 24(a): “timeliness, interest, 
impairment of interest, and adequacy of representation.”  Jones v. Prince George’s 
Cnty., Md., 348 F.3d 1014, 1017, 1019 (D.C. Cir. 2003).6 
1. The States’ motion is untimely.  
The States’ intervention motion was untimely, and therefore “intervention 
must be denied” regardless of whether the States satisfy any of the other 
intervention factors.  Amador Cnty., Cal. v. U.S. Dep’t of the Interior, 772 F.3d 
901, 903 (D.C. Cir. 2014) (cleaned up); United States v. Brit. Am. Tobacco 
Australia Servs., 437 F.3d 1235, 1239 (D.C. Cir. 2006) (“Courts reach the other 
elements of Rule 24(a) only after the threshold question of timeliness.”).  
First, and critically, the State of Texas—one of the putative intervenors—
claimed over a year ago before this Court that it “no longer believe[d] Defendants 
can or will adequately represent the State’s significant interests in this case.”  
Texas Intervention at 10, Huisha-Huisha v. Mayorkas, No. 21-5200 (D.C. Cir. Oct. 
11, 2021).  This Court denied Texas’s 2021 motion because Texas had not met 
                                                 
6 For the reasons that the States lack standing, they also lack a legally 
protectable interest that would be impaired under Rule 24(a).  See supra. 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 19 of 29

16 
 
“the standards for intervention on appeal,” Order at 1, Huisha-Huisha, No. 21-
5200 (D.C. Cir. Oct. 26, 2021) (emphasis added), citing Amalgamated Transit 
Union Int’l, AFL-CIO v. Donovan, which requires a heightened showing of 
“exceptional circumstances supported by imperative reasons,” 771 F.2d 1551, 
1553 (D.C. Cir. 1985).  Given the emphasis on the appellate intervention standard, 
the States’ next step should have been to seek to intervene in district court, where 
that standard does not apply.  Yet neither Texas nor any other State did so, even 
though all were aware of and had cited the Huisha-Huisha litigation in their court 
filings in other venues.7  Indeed, the States were notified of Plaintiffs’ summary 
judgment motion the day after it was filed in August 2022.8  Yet they took no 
action in this case until after summary judgment—more than a year after this Court 
denied intervention on appeal.   
Thus, the States “knew or should have known that” that their asserted 
interests might be “affected by the litigation” for over a year before their motion in 
district court, if not before.  Roeder v. Islamic Republic of Iran, 333 F.3d 228, 233 
(D.C. Cir. 2003) (cleaned up).  And they obviously have been aware of their own 
                                                 
7 See, e.g., Memorandum in Support of Motion for Preliminary Injunction at 
38, Louisiana v. CDC, No. 22-885 (W.D. La. Apr. 14, 2022), ECF No. 13-1; 
Amicus of Arizona, et al. at *2, Texas v. United States, No. 21-40618 (5th Cir. 
Aug. 31, 2021), 2021 WL 4126281. 
 
8 Notice at 7, Louisiana, No. 22-885 (W.D. La. Aug. 16, 2022), ECF No. 
154; see also id. ECF Nos. 155, 159. 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 20 of 29

17 
 
view regarding the “potential inadequacy of representation” for as long.  See 
Amador Cnty., 772 F.3d at 904-05 (explaining that Tribe’s statement in a 2005 
brief “that ‘[t]he presence of the United States in this case does not fully protect the 
Tribe’s interests’” demonstrated Tribe’s view of perceived inadequacy); see also 
Humane Soc’y, 2022 WL 17411257, at *2 (noting intervenors had “long been on 
notice that [their] interests were not the same as the” federal government’s); cf. 
Brit. Am. Tobacco, 437 F.3d at 1239 (where party “had already intervened once in 
the suit” on narrower issue, its “dilatory conduct” in not sooner seeking broad 
intervention was “all the more inexcusable”). 
Second, on April 1, 2022, CDC sought to end the Title 42 policy, explaining 
that it was no longer justified in the interest of public health.  CDC’s conclusion 
should have alerted the States that Defendants might not keep the program in place 
for as long as the States wished; indeed, the States sued to oppose the termination.  
Louisiana, 2022 WL 1604901, at *1.  Yet the States still declined to seek 
intervention before the district court below.  See Amador Cnty., 772 F.3d at 905 
(explaining that the Tribe “all but admit[ted]” expectation of government’s 
inadequate representation when it “stat[ed] it had ‘earlier concerns about a 
potential conflict of interest in the United States’ representation’”). 
The States emphasize Defendants’ choice to seek a five-week stay, rather 
than a stay pending appeal.  Intervention Mot. 3-4.  But the States clearly saw a 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 21 of 29

18 
 
need to intervene long before that decision was announced, given Texas’s motion 
to intervene on appeal before this Court, and the States’ lawsuit to enjoin the 
termination of Title 42 in Louisiana.  Indeed, all the States can say is that 
Defendants’ stay decision “underscored the inadequacy of Defendants’ 
representation of the States’ interests.”  Id. (emphasis added).  But “courts measure 
elapsed time from when the potential inadequacy of representation comes into 
existence,” not when the inadequacy is underscored.  Amador Cnty., 772 F.3d at 
904 (emphasis added, cleaned up); see Illinois v. City of Chicago, 912 F.3d 979, 
985 (7th Cir. 2019) (“we measure from when the applicant has reason to know its 
interests might be adversely affected, not from when it knows for certain that they 
will be”).  Otherwise, intervenors could always justify tardy motions by pointing to 
recent litigation developments as “underscoring” their longstanding concerns.   
The States’ unjustified delay prejudices Plaintiffs, the Court, and the public.  
Had the States sought to intervene earlier, their motion could have been decided in 
an orderly manner, and (if denied) the States could have immediately appealed.  
See Smoke v. Norton, 252 F.3d 468, 470 (D.C. Cir. 2001).  Instead, the States 
threaten prejudice and disruption by jamming intervention proceedings, as well as 
stay proceedings before this Court and potentially the Supreme Court, into the five-
week period the district court granted to facilitate the government’s transition to 
regular immigration processing.  See NAACP v. New York, 413 U.S. 345, 369 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 22 of 29

19 
 
(1973) (finding intervention untimely where it created “potential for seriously 
disrupting the State’s electoral process”).  The States’ delay has resulted in 
extraordinarily expedited stay briefing and likely emergency briefing on 
administrative stays, which may keep the Title 42 policy, and the harms it inflicts, 
in place. 
Moreover, the States’ standing arguments are not only legally flawed, but 
also factually disputed.  The States knew that Plaintiffs intended to dispute their 
standing facts, given that Plaintiffs opposed Texas’s earlier intervention request by 
noting the unfairness of denying them any opportunity “to gather and submit 
evidence in opposition to Texas’ arguments.”  Plaintiffs-Appellees’ Opposition at 
20-21, Huisha-Huisha, No. 21-5200 (D.C. Cir. Oct. 15, 2021).  Yet because the 
States waited until after judgment below, Plaintiffs had to agree to an expedited 
schedule in district court with no opportunity to develop the record given the threat 
that, otherwise, the States would seek administrative stays.  The States should not 
be rewarded for their unjustified delay. 
The States contend that their motion was timely because they filed shortly 
after judgment was entered.  Not so.  “Timeliness is to be determined from all the 
circumstances.”  NAACP, 413 U.S. at 366 (emphasis added).  Where the 
circumstances before judgment made it “obvious that there was a strong likelihood 
that” the parties’ interests would diverge, a post-judgment motion is untimely.  Id. 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 23 of 29

20 
 
at 360, 367.  The States’ cases are not to the contrary.  In addition to other 
significant differences, in each case intervention was sought “as soon as it became 
clear” that the intervenors’ interests diverged from those of the existing parties.  
United Airlines, Inc. v. McDonald, 432 U.S. 385, 394 (1977) (emphasis added) 
(allowing intervention where there was previously “no reason for [class member] 
to suppose” class counsel would not appeal); Cameron v. EMW Women’s Surgical 
Ctr., P.S.C., 142 S. Ct. 1002, 1010-11 (2022) (intervention of state attorney general 
to defend state law implicated “sovereignty concerns,” Humane Soc’y, 2022 WL 
17411257, at *2, and no disruption would result).  Here, the States had themselves 
raised “multiple early warnings of danger” to their interests for over a year, yet 
declined to timely intervene.  Brit. Am. Tobacco, 437 F.3d at 1239.  “An eleventh-
hour motion to do so now is untimely.”  Humane Soc’y, 2022 WL 17411257, at *2. 
2. The States’ interests are adequately represented.  
Even if the States’ motion were timely, Defendants are adequately 
representing their purported interests.  Below, the entire premise of the States’ 
adequacy argument was their belief that Defendants would not appeal the district 
court’s orders.  ECF No. 168 at 19-20, 25-26.  But Defendants have now appealed.  
ECF No. 179.    
The States have also emphasized that one of their central reasons for 
intervention is to preserve CDC’s regulatory interpretation of its expulsion powers.  
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 24 of 29

21 
 
ECF No. 168 at 24-25 (invoking “quasi-sovereign interest” in defending 
regulation).  But Defendants share that interest.  See ECF No. 179; cf. Bldg. & 
Constr. Trades Dep’t, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) 
(upholding intervention denial where intervenor “offered no argument not also 
pressed” by the government). 
Any disagreement the States may have with Defendants’ means of achieving 
this shared goal “boils down to just another dispute over litigation tactics,” which 
fails to support intervention.  See Jones, 348 F.3d at 1020.  For example, the States 
disagree with Defendants’ decision to seek a five-week stay rather than a stay 
pending appeal.  Intervention Mot. 4.  But they identify no case that finds 
inadequacy on that basis, particularly where Defendants are pursuing an appeal.  
As in Humane Society, the States are arguing for intervention “not because an 
agency failed to move for additional review, but because the agency failed to move 
for review in the third party’s preferred way.”  2022 WL 17411257, at *2.   
Indeed, the States’ position here is at odds with their position in their own 
lawsuit in Louisiana.  There, the district court entered a nationwide preliminary 
injunction forbidding CDC from rescinding the Title 42 policy.  See 2022 WL 
1604901, at *17-20, 23.  The federal government appealed but did not seek a stay 
of any length.  See Notice of Appeal, Louisiana, No. 22-885 (W.D. La. May 20, 
2022), ECF No. 92.  An immigration nonprofit moved to intervene and for a stay 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 25 of 29

22 
 
pending appeal, arguing that the injunction should be narrowed to the Plaintiff 
States.  See Motion for Stay, Louisiana, No. 22-30303 (5th Cir. June 2, 2022).  The 
federal government opposed intervention, arguing that it was sufficiently 
representing the immigration nonprofit’s interests.  Federal Government’s 
Response to Proposed Intervenor’s Opening Brief at 11, 13-14, Louisiana, No. 22-
30303 (5th Cir. Aug. 24, 2022).  Notably, although the government had not sought 
a stay (even a short one), the States “agree[d] with” the government’s intervention 
arguments without reservation.  States’ Consolidated Answering Brief at 111, 
Louisiana, No. 22-30303 (5th Cir. Aug. 31, 2022).  Just as in Louisiana, 
Defendants’ choice to appeal but not seek a stay pending appeal is not a basis for 
intervention. 
C. Permissive Intervention Is Not Warranted. 
Finally, permissive intervention under Fed. R. Civ. P. 24(b) should be 
denied, for all the reasons stated above.  This Court has “wide latitude” to decide 
whether such intervention is appropriate.  In re Endangered Species Act Section 4 
Deadline Litig., 704 F.3d 972, 980 (D.C. Cir. 2013).  Importantly, permitting the 
States “to lay in wait” throughout this litigation “would be entirely unfair.”  See 
Donovan, 771 F.2d at 1553.  Sound discretion weighs against intervention. 
 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 26 of 29

23 
 
CONCLUSION 
This Court should deny the motion to intervene. 
Dated: December 14, 2022  
 
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 
 
Bernardo Rafael Cruz  
Adriana Cecilia Pinon  
American Civil Liberties Union 
Foundation of Texas, Inc. 
5225 Katy Freeway, Suite 350 
Houston, Texas 77007 
(713) 942-8146 
brcruz@aclutx.org 
apinon@aclutx.org  
 
Karla M. Vargas 
Texas Civil Rights Project 
1017 W. Hackberry Ave. 
Alamo, Texas 78516 
(956) 787-8171 
 
Blaine Bookey 
Karen Musalo 
Neela Chakravartula 
Melissa Crow (D.C. Cir. Admission 
Pending) 
Center for Gender &  
Refugee Studies 
Respectfully Submitted, 
 
/s/ Lee Gelernt  
Lee Gelernt 
Omar Jadwat 
Daniel A. Galindo 
American Civil Liberties Union 
Foundation, Immigrants’ Rights 
Project 
125 Broad Street, 18th Floor 
New York, NY 10004 
(212) 549-2660 
lgelernt@aclu.org 
ojadwat@aclu.org 
dgalindo@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) 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 27 of 29

24 
 
200 McAllister Street 
San Francisco, CA 94102 
(415) 565-4877 
5121 Crestway Drive, Suite 105 
San Antonio, TX 78239 
(210) 960-3206 
 
Counsel for Plaintiffs-Appellees 
 
 
 
USCA Case #22-5325      Document #1977700            Filed: 12/14/2022      Page 28 of 29

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 5,157 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 December 14, 2022, 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 #22-5325      Document #1977700            Filed: 12/14/2022      Page 29 of 29

File and source

File

gov.uscourts.cadc.39286.1218478186.0.pdf

Size

296,273 bytes

SHA-256

f2e324b246912efcbb890b4ff342716f4de822c30ffff5961c6c61f03670388f

Our copy

gov.uscourts.cadc.39286.1218478186.0.pdf

Original

archive.org