E. Bay Sanctuary Covenant v. Biden

• Court: U.S. Court of Appeals — Ninth Circuit
• Writing for the Court: Dissent by Judge VanDyke
• Citation: E. Bay Sanctuary Covenant v. Biden, 102 F.4th 996 (9th Cir. 2024)
• Docket Number: 23-16032
• Decision Date: 22 May 2024
• Parties: EAST BAY SANCTUARY COVENANT; Central American Resource Center; Tahirih Justice Center; National Center for Lesbian Rights; Immigrant Defenders Law Center; American Gateways, Plaintiffs-Appellees, v. Joseph R. BIDEN, President of the United States; Merrick B. Garland, Attorney General; United States Department of Justice; David Neal; Executive Office for Immigration Review; Alejandro N. Mayorkas; U.S. Department of Homeland Security; Ur M. Jaddou; United States Citizenship and Immigration Services; Troy A. Miller; United States Customs and Border Protection, Defendants-Appellants.

102 F.4th 996

EAST BAY SANCTUARY COVENANT; Central American Resource Center; Tahirih Justice Center;National Center for Lesbian Rights; Immigrant Defenders Law Center; American Gateways, Plaintiffs-Appellees, v. Joseph R. BIDEN, President of the United States; Merrick B. Garland, Attorney General;United States Department of Justice; David Neal; Executive Office for Immigration Review;Alejandro N. Mayorkas; U.S. Departmentof Homeland Security; Ur M. Jaddou; United States Citizenship and Immigration Services;Troy A. Miller; United States Customs and Border Protection, Defendants-Appellants.

No. 23-16032

United States Court of Appeals, Ninth Circuit

Filed May 22, 2024

D.C. No. 4:18-cv-06810-JST

Brian M. Boynton (argued), Principal Deputy Assistant Attorney General; Daniel J. Tenny, Sean R. Janda, and Brian J. Springer, Appellate Staff Attorneys; Antitrust Division, United States Department of Justice, Washington, D.C.; Christina P. Greer and Patrick J. Glen, Senior Litigation Counsel; Erez Reuveni, Assistant Director; William C. Peachey, Director; Office of Immigration Litigation, Civil Division, United States Department of Justice, Washington, D.C.; for Defendants-Appellants.

Spencer E. Wittmann Amdur (argued), Katrina L. Eiland, Morgan Russell, Oscar S. Roman, and Cody Wofsy, American Civil Liberties Union Foundation Immigrants' Rights Project, San Francisco, California; Lee P. Gelernt, Omar C. Jadwat, Wafa Junaid, and Judy Rabinovitz, American Civil Liberties Union Foundation Immigrants' Rights Project, New York, New York; Melissa E. Crow, Center for Gender & Refugee Studies, Washington, D.C.; Anne E. Peterson, Blaine Bookey, Julie B. Bourdoiseau, and Karen Musalo, Center for Gender & Refugee Studies, San Francisco, California; Robert Pauw, CGRS Cooperating Attorney, Gibbs Houston Pauw, Seattle, Washington; Keren H. Zwick, Richard Caldarone, Colleen Cowgill, and Mary Georgevich, National Immigrant Justice Center, Chicago, Illinois; Michelle Y. Cho, American Civil Liberties Union Foundation of Northern California, Inc., San Francisco, California; Angelo Guisado, Center for Constitutional Rights, New York, New York; for Plaintiffs-Appellees.

Matt A. Crapo and Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.

Katherine L. Evans and Charles S. Ellison, Duke University School of Law Immigrant Rights Clinic, Durham, North Carolina, for Amici Curiae Professors of Immigration Law.

Ashley B. Vinson, Akin Gump Strauss Hauer & Feld LLP, San Francisco, California, for Amici Curiae Former Immigration Judges & Former Members of the Board of Immigration Appeals.

Alice Farmer, Office of the United Nations High Commissioner for Refugees, Washington, D.C.; Robert R. Anderson, Arnold & Porter Kaye Scholer LLP, Denver, Colorado; Samuel M. Witten and Kaitlin Konkel, Arnold & Porter Kaye Scholer LLP, Washington, D.C.; for Amicus Curiae Office of the United Nations High Commissioner for Refugees.

Kathleen R. Hartnett and Zoë Helstrom, Cooley LLP, San Francisco, California, for Amicus Curiae National Citizenship and Immigration Services Council 119.

Cameron C. Russell and Rebecca Berman, Freshfields Bruckhaus Deringer US LLP, New York, New York; Justina Sessions and J. Mia Tsui, Freshfields Bruckhaus

Deringer US LLP, Redwood City, California; Seve Kale, Freshfields Bruckhaus Deringer US LLP, Washington, D.C.; for Amici Curiae Asylum Access México A.C. and Instituto para las Mujeres en la Migración A.C.

Anwen Hughes, Christina Asencio, Rebecca Gendelman, and Licha M. Nyiendo, Human Rights First, New York, New York; Farida Chehata, Human Rights First, Los Angeles, California; for Amici Curiae Human Rights and Legal Services Organizations.

Matt A. Crapo and Christopher J. Hajec, Immigration Reform Law Institute, Washington, D.C., for Amicus Curiae Immigration Reform Law Institute.

Neville S. Hedley, Hamilton Lincoln Law Institute, Washington, D.C., for Amicus Curiae Hamilton Lincoln Law Institute.

Bridget K. O'Hickey, Assistant Solicitor General; James H. Percival, Chief of Staff; Henry C. Whitaker, Solicitor General, Antitrust Section; Ashley Moody, Attorney General of Florida; Office of the Attorney General, Tallahassee, Florida; for Amici Curiae States of Florida, Arkansas, Indiana, Iowa, Kentucky, Mississippi, Missouri, Montana, Nebraska, New Hampshire, North Dakota, Ohio, South Carolina, South Dakota, Texas, Utah, and Virginia.

Before: William A. Fletcher, Richard A. Paez, and Lawrence VanDyke, Circuit Judges.

Order;

Dissent by Judge VanDyke

ORDER

The States of Alabama, Kansas, Georgia, Louisiana, and West Virginia ("the States") seek to intervene in this appeal. Dkt. No. 86. For the reasons explained below, we deny the motion.

This appeal is currently held in abeyance. In July 2023, after the parties filed cross-motions for summary judgment, the district court granted summary judgment in Plaintiffs' favor and vacated the challenged rule (the "Rule"). See E. Bay Sanctuary Covenant v. Biden, 683 F. Supp. 3d 1025, 1053 (N.D. Cal. 2023); Circumvention of Lawful Pathways, 88 Fed. Reg. 31314 (May 16, 2023) (codified at 8 C.F.R. §§ 208.33, 1208.33). The government sought a stay pending appeal, which we granted. E. Bay Sanctuary Covenant v. Biden, No. 21., slip op. at 1 (9th Cir. Aug. 3, 2023). We heard oral argument in November 2023. Dkt. No. 82. In February 2024, the parties jointly requested that we hold the appeal in abeyance while they explored settlement. Dkt. No. 83. We granted the motion. E. Bay Sanctuary Covenant v. Biden, 93 F.4th 1130, 1131 (9th Cir. 2024). As of May 2024, the parties remain engaged in settlement discussions. Dkt. No. 111.

The States now seek to intervene in order to participate in settlement negotiations and possibly to object to any proposed settlement and to request that we vacate our stay order. In their motion, the States claim an interest in preserving the Rule in order to reduce unlawful immigration, thereby minimizing state expenditures and preserving their population-based political representation. The States contend that they did not seek to intervene earlier because they previously believed that their interests would be represented by the government. Only after they learned of the stay and settlement negotiations did they seek to intervene.

"Intervention at the appellate stage is, of course, unusual and should ordinarily be allowed only for 'imperative reasons.' " Bates v. Jones, 127 F.3d 870, 873 (9th Cir. 1997) (quoting Landreth Timber Co. v. Landreth, 731 F.2d 1348, 1353 (9th Cir. 1984), rev'd on other grounds, 471 U.S. 681, 105 S.Ct. 2297, 85 L.Ed.2d 692 (1985)).¹ This Court disfavors putative intervenors who merely seek to "attack or thwart" a remedy. United States v. Alisal Water Corp., 370 F.3d 915, 922 (9th Cir. 2004). We are unaware of any instance where a court has permitted intervention at the appellate stage while the case was held in abeyance to allow settlement negotiations.

Although "[n]o statute or rule provides a general standard to apply in deciding whether intervention on appeal should be allowed," the "policies underlying" Federal Rule of Civil Procedure 24 guide our analysis. Cameron v. EMW Women's Surgical Ctr., P.S.C., 595 U.S. 267, 276-77, 142 S.Ct. 1002, 212 L.Ed.2d 114 (2022); Day v. Apoliona, 505 F.3d 963, 964 (9th Cir. 2007).

To intervene as of right under Rule 24(a)(2), the States must show that: (1) their motion is timely; (2) they have a "significantly protectable interest relating to the property or transaction which is the subject of the action;" (3) "the disposition of the action may as a practical matter impair or impede [their] ability to protect that interest;" and (4) their "interest is inadequately represented by the parties to the action." Wilderness Soc'y v. U.S. Forest Serv., 630 F.3d 1173, 1177 (9th Cir. 2011) (en banc) (quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 1993)). The States "bear[ ] the burden of showing that these four elements are met." W. Watersheds Project v. Haaland, 22 F.4th 828, 835 (9th Cir. 2022).²

The States have not shown that they have a "significantly protectable interest" in the litigation. Wilderness Soc'y, 630 F.3d at 1179. A proposed intervenor "has a significant protectable interest if the interest is protected by law and there is a relationship between that interest and the claim or claims at issue." Cooper v. Newsom, 13 F.4th 857, 865 (9th Cir. 2021). The States' asserted interests are insufficient to support intervention in this appeal for purposes of exerting influence on settlement negotiations.

First, the States do not have a significant protectible interest in maintaining the Rule or in reducing immigration into the United States. Although "federal policies frequently generate indirect effects on state revenues or state spending," states have no legally protectible interest in compelling enforcement of federal immigration policies. United States v. Texas, 599 U.S. 670, 677-80, 680 n.3, 143 S.Ct. 1964, 216 L.Ed.2d 624 (2023); see also Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897, 104 S.Ct. 2803, 81 L.Ed.2d 732 (1984); Linda R.S. v. Richard D., 410 U.S. 614, 619, 93 S.Ct. 1146, 35 L.Ed.2d 536 (1973).³

Second, the States do not have a significant protectable interest in minimizing their expenditures and preserving their population-based political representation. While an "economic interest may be sufficient to support a right of intervention," it "must be concrete and related to the underlying subject matter of the action." Alisal Water Corp., 370 F.3d at 919 (citing Arakaki v. Cayetano, 324 F.3d 1078, 1085, 1088 (9th Cir. 2003)).⁴ Even if disposition of this appeal might affect state expenditures and political representation, such incidental effects are not at issue in the litigation and are, in any event, attenuated and speculative. See id. at 920 (holding that an intervenor's claimed interest cannot be "several degrees removed from the [issues] that...