FILED

FOR PUBLICATION

APR 8 2021

UNITED STATES COURT OF APPEALS MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

FOR THE NINTH CIRCUIT

CITY AND COUNTY OF SAN No. 19-17213

FRANCISCO; COUNTY OF SANTA

CLARA, D.C. No. 4:19-cv-04717-PJH Northern District of California, Plaintiffs-Appellees, Oakland

v.

ORDER

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal agency; U.S. DEPARTMENT OF HOMELAND SECURITY, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,

Defendants-Appellants, ______________________________

STATE OF ARIZONA, And additional States: Alabama, Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Texas, and West Virginia;

STATE OF SOUTH CAROLINA,

Intervenors-Pending. STATE OF CALIFORNIA; DISTRICT No. 19-17214

OF COLUMBIA; STATE OF MAINE;

COMMONWEALTH OF D.C. No. 4:19-cv-04975-PJH PENNSYLVANIA; STATE OF Northern District of California, OREGON, Oakland

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND

SECURITY, a federal agency; UNITED

STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal agency; CHAD F. WOLF, in his official capacity as Acting Secretary of the United States Department of Homeland Security; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,

Defendants-Appellants, ______________________________

STATE OF ARIZONA; STATE OF

ALABAMA, ARKANSAS, INDIANA,

KANSAS, LOUISIANA, MISSISSIPPI,

MONTANA, OKLAHOMA, TEXAS

AND WEST VIRGINIA; STATE OF

SOUTH CAROLINA,

Intervenors-Pending.

STATE OF WASHINGTON; No. 19-35914

2 COMMONWEALTH OF VIRGINIA; D.C. No. 4:19-cv-05210-RMP STATE OF COLORADO; STATE OF Eastern District of Washington, DELAWARE; STATE OF ILLINOIS; Richland

STATE OF MARYLAND;

COMMONWEALTH OF

MASSACHUSETTS; DANA NESSEL,

Attorney General on behalf of the People of Michigan; STATE OF MINNESOTA;

STATE OF NEVADA; STATE OF NEW

JERSEY; STATE OF NEW MEXICO;

STATE OF RHODE ISLAND; STATE

OF HAWAII,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HOMELAND

SECURITY, a federal agency; KEVIN K. MCALEENAN, in his official capacity as Acting Secretary of the United States Department of Homeland Security;

UNITED STATES CITIZENSHIP AND

IMMIGRATION SERVICES, a federal agency; KENNETH T. CUCCINELLI, in his official capacity as Acting Director of United States Citizenship and Immigration Services,

Defendants-Appellants, ______________________________

STATE OF ARIZONA; STATE OF

ALABAMA, ARKANSAS, INDIANA,

KANSAS, LOUISIANA, MISSISSIPPI,

MONTANA, OKLAHOMA, TEXAS,

AND WEST VIRGINIA; STATE OF

3

SOUTH CAROLINA,

Intervenors-Pending.

Before: SCHROEDER, W. FLETCHER, and VANDYKE, Circuit Judges. Dissent by Judge VanDyke

The Motion of State of South Carolina to Join Motion to Intervene by the

States of Arizona, et al., is GRANTED.

The Motion of State of Missouri to Join Motion to Intervene by the States of

Arizona, et al., is GRANTED.

The Motion to Intervene by the States of Arizona, et al., is DENIED.

4 City & County of San Francisco v. USCIS, No. 19-17213 FILED California v. Dep’t of Homeland Sec., No. 19-17214 Washington v. Dep’t of Homeland Sec., No. 19-35914 APR 8 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

VANDYKE, Circuit Judge, dissenting from the denial of intervention

With the recent change in federal administrations, the Biden Administration

stopped defending certain rules promulgated by the Trump Administration,

including the Public Charge rule at issue in this case. That in itself is neither

surprising nor particularly unusual. Elections have consequences, as they say, and

a common enough one is that new presidential administrations, especially of a

different party, often disagree with some of the rules promulgated by their

predecessors. But here, as I explain in more detail below, the new administration

did something quite extraordinary with the Public Charge rule. In concert with the

various plaintiffs who had challenged the rule in federal courts across the country,

the federal defendants simultaneously dismissed all the cases challenging the rule

(including cases pending before the Supreme Court), acquiesced in a single judge’s

nationwide vacatur of the rule, leveraged that now-unopposed vacatur to

immediately remove the rule from the Federal Register, and quickly engaged in a

cursory rulemaking stating that the federal government was reverting back to the

Clinton-era guidance—all without the normal notice and comment typically needed

to change rules.

1 In short, the new administration didn’t just stop defending the prior

administration’s rule and ask the courts to stay the legal challenges while it

promulgated a new rule through the ordinary (and invariably time- and resource-

consuming) process envisioned by the APA. Instead, together with the plaintiffs

challenging the rule, it implemented a plan to instantly terminate the rule with

extreme prejudice—ensuring not only that the rule was gone faster than toilet paper

in a pandemic, 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. Not bad for a day’s work.

But not everyone was impressed with this rare display of governmental

efficiency. Swiftly rebounding from the whiplash, a collection of states quickly

moved to intervene in the various lawsuits challenging the rule around the country

(including this one), arguing that because the federal government was now

demonstrably in cahoots with the plaintiffs, the states should be allowed to take up

the mantle of defending the Trump-era rule. Pointing to the fact that the Supreme

Court had both stayed multiple lower courts’ injunctions of the rule and—until the

new administration voluntarily dismissed its appeals—planned to review the rule’s

validity, the states contended there is something amuck about the federal

government’s new rulemaking-by-collusive-acquiescence.

2 The panel majority denies the states’ motion for intervention. I conclude

intervention is warranted, and therefore respectfully dissent. Before explaining why,

I first provide some background on the Public Charge rule and the legal challenges

to it. And after explaining why we should have granted intervention, I briefly

conclude with what I think might be a possible solution to this novel problem of a

new federal administration deliberately (1) short-circuiting the normal APA process

by using a single judge to engage in de facto nationwide rulemaking and (2) locking

in adverse legal precedents that the Supreme Court has already signaled are highly

questionable.

I. Background

A. The term “Public Charge”

The term “public charge” has been a part of our country’s statutory

immigration lexicon for more than a century. City & County of San Francisco v.

USCIS, 981 F.3d 742, 749 (9th Cir. 2020) (noting the first use in the Immigration

Act of 1882). The most recent regulatory interpretation of that term has prompted

various circuits across the nation to spill much ink arguing over its precise historical

contours. See, e.g., Cook County v. Wolf, 962 F.3d 208, 222–29 (7th Cir. 2020);

New York v. U.S. Dep’t of Homeland Security, 969 F.3d 42, 63–80 (2d Cir. 2020);

CASA de Md., Inc. v. Trump, 971 F.3d 220, 230–34 (4th Cir. 2020), vacated for

reh’g en banc, 981 F.3d 311 (4th Cir. 2020) (dismissed Mar. 11, 2021); City &

3 County of San Francisco, 981 F.3d at 756–58. Throughout much of its history,

however, “public charge” has maintained a less-than-precise meaning, even as the

term was continuously used in various state and federal statutes denying admission

or adjustment of immigration status to noncitizens that were “likely at any time to

become a public charge.” 8 U.S.C. § 1182(a)(4)(A); see also Cook County, 962 F.3d

at 238–42 (Barrett, J., dissenting) (explaining the statutory usages and inferred

meanings of the term “public charge” throughout its history).

In a laudable attempt to give the term a more concrete meaning, the Clinton

Administration proposed a rule to define the term “public charge,” but the effort was

ultimately abandoned and a final rule never issued. See Inadmissibility and

Deportability on Public Charge Grounds, 64 Fed. Reg. 28,676 (proposed May 26,

1999). Enduring from that attempt, however, was field guidance defining a “public

charge.” Field Guidance on Deportability and Inadmissibility on Public Charge

Grounds, 64 Fed. Reg. 28,689, 28,692 (May 26, 1999). This field guidance was not

binding, but the Department of Homeland Security (DHS) followed it in the absence

of explicit regulatory direction. See New York, 969 F.3d at 53.

Under the guidance, an individual was considered a “public charge” if he was

likely to receive “[c]ash assistance for income maintenance [or] institutionalization

for long-term care at government expense.” 64 Fed. Reg. at 28,692. But an

individual seeking adjustment of status would not be considered a “public charge,”

4 even though he would need government-provided housing, government-paid

electrical assistance, government-provided food, government health insurance for

himself and his children, and government-provided childcare while using

government-provided job training. See 64 Fed. Reg. at 28,692–93. In short, under

the de facto rule in existence before the Trump Administration promulgated an actual

rule, a noncitizen would not be deemed a public charge even though the government

furnished essentially his every need (and many of his wants), just as long as the

government didn’t give him cash benefits that he could then use to pay for his Netflix

subscription.

While the ambiguous concept of a “public charge” no doubt allows for

substantial interpretive elasticity, that seems quite a stretch. Indeed, it seems exactly

backwards from what most people would think makes someone a “public charge.”

Nowadays, almost everybody in this country is getting cash stimulus payments from

the IRS on what feels like a semi-regular basis, and nobody thinks that alone makes

them a public charge. Call me crazy, but I expect most people would say it is being

overly reliant on the government to meet your needs that makes one a public charge,

not whether the welfare benefits are provided in cash or in kind.

B. New Public Charge Definition

Nearly two decades after the Clinton Administration promulgated its

guidance, the Trump Administration in August 2019 issued a final rule—after notice

5 and comment—defining “public charge.” Inadmissibility on Public Charge

Grounds; Final Rule, 84 Fed. Reg. 41,292 (Aug. 14, 2019). The 2019 rule looked

prospectively at applications for admission or adjustment of status to determine

whether the individual was “more likely than not at any time in the future to receive

one or more designated public benefits for more than 12 months in the aggregate

within any 36-month period.” Id. at 41,295. The rule considered whether an

individual would likely receive cash from the government and/or “means-tested non-

cash benefits … which bear directly on the recipient’s self-sufficiency and

… account for significant federal expenditures on low-income individuals.” Id. at

41,296. If, under the totality of circumstances analysis, a noncitizen applying for

admission or adjustment of status would likely need specified cash benefits and/or

various non-monetizable government-provided housing, food assistance, or medical

insurance for more than a collective twelve months, then the noncitizen could be

considered a public charge. Id. at 41,501 (citing 8 C.F.R. § 212.21).

Because many categories of immigrants are either not eligible for these types

of public benefits or are exempted from the public charge exclusion, the rule

primarily affected only a limited subset of immigrants—nonimmigrant visa holders

applying for green cards. See Cook County, 962 F.3d at 235–38 (Barrett, J.,

6 dissenting).1 While not currently eligible for public benefits, upon adjustment of

status, those individuals would be eligible in the future—thus, “[t]he public charge

rule is concerned with what use a green card applicant would make of this future

eligibility.” Id. at 237.

C. Challenging the 2019 Public Charge Rule

Notwithstanding that the 2019 rule affected only a narrow group of people,

almost none of whom have previously used public benefits, a score of outraged

entities challenged the rule.2 In late 2019, district courts in the Second, Fourth,

Seventh, and Ninth Circuits all preliminarily enjoined the rule’s enforcement. See

New York v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 334, 353 (S.D.N.Y.

2019); CASA de Md., Inc. v. Trump, 414 F. Supp. 3d 760, 788 (D. Md. 2019); Cook

County v. McAleenan, 417 F. Supp. 3d 1008, 1014 (N.D. Ill. 2019); City & County

1 A lawful permanent resident—already admitted to the U.S. and thus eligible for select public benefits—could also be subject to the 2019 rule if the individual left the United States for more than 180 days, which would bring his residency into question and prompt the need to seek admission upon returning. See Cook County, 962 F.3d at 236 (Barrett, J., dissenting). 2 The states challenging the rule alleged injury in the form of resident noncitizens, confused by the language of the rule, unnecessarily disenrolling from state public benefits. See New York, 969 F.3d at 59–60. DHS explained that the new rule would actually save the states money because they would be paying out less in public benefits. Id. at 60. The challenging states didn’t disagree that the rule would directly save them money, but countered with a response that would delight salespeople everywhere: sometimes you have to spend money to save it. Id.; see also City & County of San Francisco, 981 F.3d at 755. 7 of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1073 (N.D. Cal. 2019);

Washington v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 1191, 1224 (E.D.

Wash. 2019). A divided motions panel of this court stayed the injunctions issued in

this circuit in a published opinion, thereby allowing the rule to go into effect. City

& County of San Francisco v. USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Likewise,

the Fourth Circuit stayed the preliminary injunction in its circuit. CASA de Md., Inc.,

971 F.3d at 237. The Second and Seventh Circuits initially denied stays, but the

Supreme Court stepped in and stayed the preliminary injunctions issued in those

circuits as well. See Dep’t of Homeland Sec. v. New York, 140 S. Ct. 599, 599

(2020); Wolf v. Cook County, 140 S. Ct. 681, 681 (2020). In sum, although the

plaintiffs had a nice run of initial successes challenging the rule, by early 2020, all

the injunctions against the rule had been stayed and the rule was in effect nationwide.

Undeterred by the Supreme Court’s signal that challenges to the rule were

ultimately likely to fail on the merits, lower courts continued to hammer away. The

Second Circuit in continuing litigation affirmed the issuance of its circuit’s

preliminary injunction (with a limited scope), as did divided panels in the Seventh

Circuit and this circuit. See New York, 969 F.3d at 50 (affirming the preliminary

injunction, but with a limited scope); Cook County, 962 F.3d at 215; City & County

of San Francisco, 981 F.3d at 763 (affirming preliminary injunctions, but with a

limited scope). But a divided Fourth Circuit panel reversed, noting that the Supreme

8 Court’s stay in other circuits’ proceedings “would have been improbable if not

impossible had the government, as the stay applicant, not made a strong showing

that it was likely to succeed on the merits.” CASA de Md., Inc., 971 F.3d at 229

(citation and internal quotation marks omitted).

Meanwhile, back in the Seventh Circuit, having moved on from the

preliminary injunction stage to the merits phase of litigation, the Northern District

of Illinois on November 2, 2020 entered a Rule 54(b) final judgment against the

federal government and vacated the rule in its entirety. Cook County v. Wolf, No.

1:19-cv-06334, 2020 WL 6393005, at *6–7 (N.D. Ill. Nov. 2, 2020).

Notwithstanding the Supreme Court’s stay of its earlier preliminary injunction, the

district court denied the government’s request to stay the vacatur of the rule. Id. The

Seventh Circuit, perhaps more experienced at reading the Supreme Court, stepped

in and stayed implementation of the district court’s judgment pending appeal. Order

Granting Motion to Stay Judgment, Cook County v. Wolf, No. 20-3150 (7th Cir. Nov.

19, 2020), ECF No. 21.

While all this was going on, the federal government filed multiple petitions

for certiorari seeking Supreme Court review of the Second, Seventh, and Ninth

Circuit decisions concluding that the rule was likely unlawful. As these petitions

were pending, President Biden took office in January 2021. Almost exactly a month

later, the Supreme Court on February 22, 2021 granted review of the Second

9 Circuit’s case. See Dep’t of Homeland Sec. v. New York, No. 20-449, 2021 WL

666376, at *1 (U.S. Feb. 22, 2021). While obviously one can never fully predict

how the Supreme Court is going to decide a case, the Supreme Court’s earlier

stays—combined with its later cert grant of a lower court decision at odds with those

stays—did not bode well for opponents of the rule.

D. DHS’s Rapid Dismissal of the Litigation

One of those opponents was the new Biden Administration, which put the

federal government in the awkward position of having a case teed up before the

Supreme Court that it knew it was likely to win, but now really wanted to lose. So

in the early hours of March 9, 2021, despite the Supreme Court having granted

certiorari just two weeks prior in a related case that the government had asked the

Court to review, DHS in coordination with the plaintiffs moved to dismiss the

Seventh Circuit appeal of the district court’s vacatur of the rule. 3 Approximately an

hour and a half later, DHS released a statement explaining that “the Department of

Justice will no longer pursue appellate review of judicial decisions invalidating or

enjoining enforcement of the 2019 Rule.” 4 With a reaction time the envy of every

3 See Unopposed Motion to Voluntarily Dismiss Appeal, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 23. 4 Press Release, U.S. Dep’t of Homeland Sec., DHS Statement on Litigation Related to the Public Charge Ground of Inadmissibility (Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs-statement-litigation-related-public- charge-ground-inadmissibility. 10 appellate court, the Seventh Circuit only a few hours after DHS’s statement granted

the motion to dismiss and immediately issued the mandate.5 Later that same

evening, DHS issued another statement noting that “[f]ollowing the Seventh Circuit

dismissal this afternoon, the final judgment from the Northern District of Illinois,

which vacated the 2019 public charge rule, went into effect.” It continued that “[a]s

a result, the 1999 interim field guidance on the public charge inadmissibility

provision (i.e., the [Clinton-era] policy that was in place before the 2019 public

charge rule) is now in effect.”6 A little over 24 hours later, the parties filed a joint

stipulation to dismiss the case in the Northern District of Illinois. 7 The district court

closed the case the following day. 8

On the same day it dismissed its Seventh Circuit appeal, the federal

government, now BFFs with its prior opponents, also filed joint stipulations to

dismiss all the cases pending before the Supreme Court, including the Second Circuit

5 Order Dismissing Appeal, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 24-1; Notice of Issuance of Mandate, Cook County v. Wolf, No. 20- 3150 (7th Cir. Mar. 9, 2021), ECF No. 24-2. 6 Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs- secretary-statement-2019-public-charge-rule. 7 Joint Stipulation of Dismissal with Prejudice, Cook County v. Wolf, No. 19-cv- 6334 (N.D. Ill. Mar. 11, 2019), ECF No. 253. 8 Notification of Docket Entry, Cook County v. Wolf, No. 19-cv-6334 (N.D. Ill. Mar. 12, 2019), ECF No. 254. 11 case in which the Supreme Court had already granted cert.9 Consistent with the

Supreme Court’s Rule 46.1, which allows automatic dismissal of a case by

unanimous agreement of the parties, the Clerk of the Supreme Court, “without

further reference to the Court,” dismissed those cases. Sup. Ct. R 46.1. 10

In the afternoon of that same day, March 9, 2021, the parties also moved to

dismiss their case in the Fourth Circuit. 11 The Fourth Circuit granted the unopposed

motion and issued the mandate two days later, on March 11, 2021, noting the lack

of opposition.12

On that same day—March 11, 2021, only two days after the federal

government’s volte-face—fourteen states 13 responded in the Seventh and Fourth

9 Joint Stipulation to Dismiss, U.S. Dep’t of Homeland Sec. v. New York, No. 20-449 (U.S. Mar. 9, 2021); Joint Stipulation to Dismiss, Mayorkas v. Cook County, No. 20- 450 (U.S. Mar. 9, 2021); Joint Stipulation to Dismiss, USCIS v. City & County of San Francisco, No. 20-962 (U.S. Mar. 9, 2021). 10 Mayorkas v. Cook County, No. 20-450, 2021 WL 1081063 (U.S. Mar. 9, 2021); USCIS v. City & County of San Francisco, No. 20-962, 2021 WL 1081068 (U.S. Mar. 9, 2021); Dep’t of Homeland Sec. v. New York, No. 20-449, 2021 WL 1081216 (U.S. Mar. 9, 2021). See Unopposed Motion to Voluntarily Dismiss Appeal, CASA de Md. v. Biden, 11

No. 19-2222 (4th Cir. Mar. 9, 2021), ECF No. 210. 12 See Order, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF No. 211; Rule 42(b) Mandate, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF No. 212. 13 The states are Texas, Alabama, Arizona, Arkansas, Indiana, Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma, South Carolina, and West Virginia. The day before, on March 10, 2021, the states of Arizona, Alabama,

12 Circuits to the parties’ synchronized blitzkrieg, collectively filing a Motion to Recall

the Mandate to Permit Intervention as Appellant, an Opposed Motion to Reconsider,

or alternatively, Rehear, a Motion to Dismiss, and an Opposed Motion to Intervene.14

The states explained that “[b]ecause the Court issued its mandate within hours of the

United States’ announcement that it would no longer defend the Rule, interested

parties had no ability to intervene before it did so,” and “because the United States

did not inform the States that it intended to cease defending the Rule before

abandoning numerous cases supporting the Rule nationwide, the States did not have

an opportunity to intervene at an earlier point.”15

Arkansas, Indiana, Kansas, Louisiana, Mississippi, Montana, Oklahoma, Texas, and West Virginia, filed the Motion to Intervene now denied by this panel. See Motion to Intervene, City and County of San Francisco v. USCIS, Nos. 19-17213, 19-17214, 19-35914 (9th Cir. Mar. 10, 2021). South Carolina and Missouri subsequently moved to join the motion before our court. 14 See Motion to Recall the Mandate to Permit Intervention as Appellant, Opposed Motion to Reconsider, or in the Alternative to Rehear, the Motion to Dismiss, Opposed Motion to Intervene-Appellants, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11, 2021), ECF Nos. 25-1, 25-2, 25-3; Motion to Recall the Mandate to Permit Intervention as Appellant, Opposed Motion to Reconsider, or in the Alternative to Rehear, the Motion to Dismiss, Opposed Motion for Leave to Intervene-Appellants, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11, 2021), ECF Nos. 213, 214, 215. 15 See Motion to Recall the Mandate to Permit Intervention as Appellant, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11, 2021), ECF Nos. 25-1, at 4. 13 The Seventh Circuit summarily denied the states’ motions on March 15,

2021, 16 coincidentally the same day that DHS issued a final rule removing the 2019

rule. The Fourth Circuit also summarily denied the states’ motions on March 18,

2021. 17 On March 19, 2021, having been denied intervention or any other relief by

the Seventh Circuit, the states asked the Supreme Court to order intervention or grant

alternative relief that would allow them to revive the lower court litigation.18

E. DHS’s Rescission of the 2019 Rule

On March 15, 2021, DHS issued a final rule “remov[ing] the regulations

resulting from [the 2019 rule], which has since been vacated by a Federal district

court.”19 Notably, it issued the final rule without a notice and comment period or

delayed effective date, stating instead that it was promulgating a rule that was

already in effect: “[t]his rule is effective on March 9, 2021, as a result of the district

court’s vacatur.” It explained that “[b]ecause this rule simply implements the district

court’s vacatur of the August 2019 rule, as a consequence of which the August 2019

16 See Order Denying Motions, Cook County v. Wolf, No. 20-3150 (7th Cir. Mar. 15, 2021), ECF No. 26. 17 See Order Denying Motions, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 18, 2021), ECF No. 216. 18 See Application for Leave to Intervene & for a Stay of Judgment, Texas v. Cook County, No. 20A150 (U.S. Mar. 19, 2021). 19 Inadmissibility on Public Charge Grounds; Implementation of Vacatur, 86 Fed. Reg. 14,221 (Mar. 15, 2021) (to be codified at 8 C.F.R. pts. 103, 106, 212–14, 245, 248). 14 rule no longer has any legal effect, DHS is not required to provide notice and

comment or delay the effective date of this rule.” Accordingly, there was “good

cause” to “bypass[] any otherwise applicable requirements of notice and comment

and a delayed effective date” as “unnecessary for implementation of the court’s order

vacating the rule … in light of the agency’s immediate need to implement the now-

effective final judgment.” 20

This is the background against which we are presented the instant motion to

intervene. Arguing that the federal government managed to snatch defeat from the

jaws of victory only by naked capitulation, the states ask for an opportunity to pick

up the football and step into the federal government’s shoes, just as the formerly

adversarial parties are walking off the field together, hand-in-hand, celebrating their

“win-win.” Meanwhile, the plaintiffs and feds, only months ago bitter enemies,

collectively press us to deny intervention. The game is over, they say. You can’t

put Humpty Dumpty back together again. The horse hasn’t just left the barn—it’s

dead, and never coming back.

II. Analysis

The federal government and the plaintiffs have certainly played their hand

well. Not only have they gotten rid of a rule they dislike, but they’ve done so in a

way that allowed them to dodge the pesky requirements of the APA and ensure that

20 Id. at 14,221. 15 it will be very difficult for any future administration to promulgate another rule like

the 2019 rule. But putting aside one’s view of the merits of the rule itself, that

doesn’t seem like a good thing for good government. Leveraging a single judge’s

ruling into a mechanism to avoid the public participation in rule changes envisioned

by the APA should trouble pretty much everyone, one would hope. Especially when

the legal validity of that ruling is highly suspect and left untested only because of

the collusive actions of the parties. Left unchecked, it seems quite likely this will

become the mechanism of choice for future administrations to replace disfavored

rules with prior favored ones.

But of course, just because something is bad policy doesn’t always mean there

is a legal basis to challenge it. Ultimately, the question currently before this panel

is whether the states should be allowed to intervene—that is, not whether they should

win the game, but just whether they should be allowed to play. That question is

controlled by a well-established standard that favors intervention. As explained

below, I think the states have easily met that standard here.

A. The States Meet the Intervention Standard

The states’ motion to intervene is governed by Federal Rule of Civil Procedure

24. Int’l Union, United Auto., Aerospace & Agric. Implement Workers of Am., AFL-

CIO, Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965); Day v. Apoliona, 505

16 F.3d 963, 965 (9th Cir. 2007). Per Rule 24(a)(2), applicants can intervene in an

action as of right when they meet the following four requirements:

(1) the intervention application is timely; (2) the applicant has a significant protectable interest relating to the property or transaction that is the subject of the action; (3) the disposition of the action may, as a practical matter, impair or impede the applicant’s ability to protect its interest; and (4) the existing parties may not adequately represent the applicant’s interest.

Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006) (citation and internal quotation

marks omitted); see also Fed. R. Civ. P. 24(a)(2). When determining whether these

four “requirements are met, we normally follow ‘practical and equitable

considerations’ and construe the Rule ‘broadly in favor of proposed intervenors.’”

Wilderness Soc’y v. U.S. Forest Serv., 630 F.3d 1173, 1179 (9th Cir. 2011) (en banc)

(citation omitted).

To evaluate intervention’s timeliness, “we consider (1) the stage of the

proceeding at which an applicant seeks to intervene; (2) the prejudice to other

parties; and (3) the reason for and length of the delay.” Peruta v. County of San

Diego, 824 F.3d 919, 940 (9th Cir. 2016) (en banc) (citation and internal quotation

marks omitted). If a putative intervenor moves promptly to intervene when it

becomes clear that their interests “would no longer be protected …. there is no reason

why [the intervention] should not be considered timely.” United Airlines, Inc. v.

McDonald, 432 U.S. 385, 394–95 (1977). The states here moved to intervene in the

public charge cases within mere days of the federal government making public that 17 it no longer sought to defend the rule. The plaintiffs and the federal government

argue against intervention by contending that “[n]either practical nor equitable

concerns justify intervention at this late stage in the litigation.” But this is hardly

the typical case where putative intervenors sat on their hands until the eleventh hour.

Instead, the federal government robustly defended the rule for more than a year in

courts across the nation before suddenly acquiescing in its vacatur and dismissing

all the public charge cases without prior notice. Because the states quickly

intervened when they discovered that the federal government had abandoned their

interests, and the federal government has asserted no apparent prejudice in allowing

intervention, the motion to intervene is timely.

The states also have a “significant protectable interest” in the continuing

validity of the rule because invalidating the rule could cost the states as much as

$1.01 billion annually. 21 The federal government contends that in lieu of joining

this litigation, the states can vindicate their interests by participating in an agency

review process or asking the agency to promulgate a new rule. This argument might

have had more merit had the federal government followed the traditional route of

asking the courts to hold the public charge cases in abeyance, rescinding the rule per

the APA, and then promulgating a new rule through notice and comment

Motion to Intervene by the States at 1, 3–5, City & County of San Francisco v. 21

USCIS, 981 F.3d 742 (9th Cir. 2021) (Nos. 19-17213, 19-17214, 19-35914). 18 rulemaking. But instead, the federal government intentionally avoided the APA

entirely by acquiescing in a final district court judgment and altering the federal

regulations by unilaterally reinstating the 1999 field guidance. See 86 Fed. Reg. at

14,221 (“This rule removes from the Code of Federal Regulations … the regulatory

text that DHS promulgated in the August 2019 rule and restores the regulatory text

to appear as it did prior to the issuance of the August 2019 rule.”). Its carefully

coordinated actions effectively removed the Trump-era rule and installed the

Clinton-era guidance as the de facto new rule—without any formal agency

rulemaking or meaningful notice to the public. By deliberately evading the

administrative process in this way, the government harmed the state intervenors by

preventing them from seeking any meaningful relief through agency channels. The

courts can and should remedy this procedural harm. See Massachusetts v. EPA, 549

U.S. 497, 518 (2007) (“When a litigant is vested with a procedural right, that litigant

has standing if there is some possibility that the requested relief will prompt the

injury-causing party to reconsider the decision that allegedly harmed the litigant.”).

The disposition of this action, together with the federal government’s other

coordinated efforts to eliminate the rule while avoiding APA review, will impair or

impede the states’ ability to protect their interest in the 2019 rule’s estimated annual

savings discussed above. And the existing parties obviously do not adequately

represent the states’ interests because they are now united in vigorous opposition to

19 the rule. See Arakaki v. Cayetano, 324 F.3d 1078, 1086 (9th Cir. 2003) (“The most

important factor in determining the adequacy of representation is how the interest

compares with the interests of existing parties.”).

Against the states’ arguments in favor of intervention, the federal government

and plaintiffs have one main response: this case is moot because the court cannot

offer adequate relief now that the 2019 rule has been vacated by a different federal

judge in a different circuit.

“The party asserting mootness bears the burden of establishing that there is no

effective relief that the court can provide.” Forest Guardians v. Johanns, 450 F.3d

455, 461 (9th Cir. 2006). “That burden is ‘heavy’; a case is not moot

where any effective relief may be granted.” Id. (emphasis in original) (citation

omitted).

The parties opposing intervention have failed to meet their “heavy” burden

here. Id. (citation omitted). As the states explain, they could obtain effective relief

because they currently have an action pending before the Supreme Court asking that

Court to order the Seventh Circuit to reverse or stay the vacatur of the rule. If

successful, that would remove any obstacle to the states ultimately getting relief in

this court. See Allied Concrete & Supply Co. v Baker, 904 F.3d 1053, 1066 (9th Cir.

2018) (distinguishing moot cases where the underlying litigation had concluded

from cases where “a potential petition for rehearing or certiorari keeps a case alive”).

20 Indeed, if the states are successful in their current request that the Supreme Court

stay the Seventh Circuit’s vacatur of the rule, given our denial of their intervention

here the states will be left with no way to prevent one of the district courts in our

circuit from immediately imposing a nationwide preliminary injunction of the rule

or, worse, vacating the rule (again). The horse may have left the barn, but the rumors

of its death are, if not greatly exaggerated, at least premature.

Since this case is not moot, I would have granted the states’ intervention

motion because now that the federal government has abandoned the field, only the

states themselves can present their arguments in favor of the rule to the Court. By

denying the motion to intervene, we are sanctioning a collude-and-circumvent tactic

by the parties, who clearly now share the same agenda. Cf. Knox v. Serv. Emp. Int’l

Union, Loc. 1000, 567 U.S. 298, 307 (2012) (warning that “postcertiorari maneuvers

designed to insulate a decision from review by [the Supreme] Court must be viewed

with a critical eye”).

There is a final reason why intervention is especially warranted in this case.

By granting two stays (and a later petition for certiorari), the Supreme Court

repeatedly indicated that the United States had “made a strong showing that [it was]

likely to succeed on the merits” in its defense of the rule. Nken v. Holder, 556 U.S.

418, 434 (2009) (citation omitted). Absent intervention, the parties’ strategic

cooperative dismissals preclude those whose interests are no longer represented from

21 pursuing arguments that the Supreme Court has already alluded are meritorious.

Even more concerning, the dismissals lock in a final judgment and a handful of

presumptively wrong appellate court decisions in multiple circuits, and circumvent

the APA by avoiding formal notice-and-comment procedures. See Transp. Div. of

the Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers v. Fed. R.R. Admin., 988

F.3d 1170, 1180 (9th Cir. 2021) (noting that among “the most fundamental of the

APA’s procedural requirements” is the requirement that “the agency shall give

interested persons an opportunity to participate in the rule making through

submission of written data, views, or arguments for the agency’s consideration”

(citation and internal quotation marks omitted)). The United States’ evasion of one

of the APA’s most fundamental requirements, especially on such shaky grounds as

a district court decision that never withstood the crucible of full appellate review,

further supports intervention here.

B. Munsingwear Vacatur?

There is truth to the federal government’s and plaintiffs’ arguments in

opposition to intervention that, as things currently stand, the Ninth Circuit’s Public

Charge cases have been relegated to little more than a rearguard action. So long as

the 2019 rule itself remains vacated nationwide by a single judge in the Seventh

Circuit, not much can be done in this circuit to affect that. While that doesn’t

technically make this case moot for purposes of our intervention analysis, it does

22 highlight the expansive reach of the parties’ coordinated actions, and how

impressively effective those actions are at preventing anyone or any single court

from unwinding their multifaceted, calculated capitulation and avoidance of the

APA. They really have smashed Humpty Dumpty into pieces spread across the

nation, and there isn’t a single court (or future administration) that can do much

about it.

Except the one court that has yet to address the states’ arguments: the Supreme

Court. First, the Supreme Court obviously could allow the states to intervene in the

Seventh Circuit litigation and defend the 2019 rule in place of the federal

government. But I think there may be a simpler solution here that would not only

address what has happened with respect to the Public Charge rule but, perhaps more

importantly, would encourage future administrations to change rules—not through

collusive capitulation—but via the familiar and required APA rulemaking process

Congress created for that purpose.

The solution is that the Supreme Court could simply clarify that Munsingwear

vacatur of lower court decisions and judgments is appropriate in this circumstance

where the federal government and the plaintiffs jointly mooted litigation by

acquiescing in a judgment against the government, which then prevented the normal

APA process for removing or replacing a formal rule. Under Munsingwear, when a

civil case is mooted while on appeal to the Supreme Court, “[t]he established

23 practice” is “to reverse or vacate the judgment below and remand with a direction to

dismiss.” United States v. Munsingwear, Inc., 340 U.S. 36, 39 (1950). “Because

this practice is rooted in equity, the decision whether to vacate turns on ‘the

conditions and circumstances of the particular case.’” Azar v. Garza, 138 S. Ct.

1790, 1792 (2018) (per curiam) (citation omitted).

For instance, “[v]acatur is in order when mootness occurs through … the

‘unilateral action of the party who prevailed in the lower court.’” Arizonans for Off.

Eng. v. Arizona, 520 U.S. 43, 71–72 (1997) (quoting U.S. Bancorp Mortg. Co. v.

Bonner Mall P’ship, 513 U.S. 18, 23 (1994)). This is to prevent a party from

securing “a favorable judgment, tak[ing] voluntary action that moots the dispute, and

then retain[ing] the benefit of the judgment.” Arizonans for Off. Eng., 520 U.S. at

75 (alterations omitted). By requiring that the lower court judgment be vacated

under those circumstances, Munsingwear “prevent[s] a judgment, unreviewable

because of mootness, from spawning any legal consequences.” Munsingwear, 340

U.S. at 41. That’s why vacatur in such circumstances is “generally ‘automatic.’”

NASD Dispute Resol., Inc. v. Jud. Council of State of Cal., 488 F.3d 1065, 1068 (9th

Cir. 2007) (citation omitted).

But under the Bancorp exception to Munsingwear, courts usually won’t

vacate lower court decisions when the appellant’s voluntary actions moot the appeal.

See Bancorp, 513 U.S. at 25. The reason for that is straightforward: generally, if a

24 party lost below, but does something intentional to moot its case while the appeal is

pending, you don’t need to worry about that losing party deliberately mooting the

case on appeal so that it can “retain the benefit of the judgment” without risking a

future adverse decision. For the party that lost below, there isn’t generally any

“benefit of the judgment” to be retained. If the losing party voluntarily moots the

case on appeal, it is invariably for some reason other than trying to manipulate the

court system to lock in favorable precedent while insulating that precedent from

further review. That is why, in reliance on Bancorp, courts rarely Munsingwear

vacate a lower court decision when the parties voluntarily settle a case. See generally

id. In those situations, “[t]he judgment is not unreviewable, but simply unreviewed

by [the losing party’s] own choice.” Id. Those appellants “voluntarily forfeited

[their] legal remedy by the ordinary process of appeal or certiorari, thereby

surrendering [their] claim to the equitable remedy of vacatur.” Id.

The federal government’s coordinated settlement of the Public Charge cases

falls within the technical parameters of the Bancorp exception to Munsingwear

vacatur because the federal government was the appellant in these cases. But the

uniquely inequitable circumstances facing the intervening states here, together with

the government’s maneuvering precisely so that it could retain the benefit of some

questionable judgments it now really likes, demonstrates that this situation clearly

falls far outside any reasonable rationale for Bancorp’s exception to Munsingwear’s

25 normal rule. The settlements that the states seek to challenge are a transparent

attempt by a new federal administration and its prior litigation opponents to not only

rid the federal government of a now-disfavored rule, but also to avoid the APA’s

procedures in changing that rule and force any future administration that wants to

enact a similar rule to fight against the strong headwinds of dubious Ninth, Seventh,

and Second Circuit precedent. This is, in short, precisely an example of a party

“tak[ing] voluntary action that moots the dispute, and then retain[ing] the benefit of

the judgment.” Arizonans for Off. Eng., 520 U.S. at 75 (alterations omitted).

Because both Munsingwear and Bancorp turn on equity—and even Bancorp

notes that “exceptional circumstance[s] may … counsel in favor of … vacatur” when

parties settle, Bancorp, 513 U.S. at 29—the Supreme Court should make clear that

the Bancorp exception to Munsingwear, which usually counsels against vacating a

judgment where the appellant’s voluntary actions mooted the appeal, does not apply

in this circumstance. The states’ proceedings before the Supreme Court seem like a

perfect vehicle for the Court to address this unique situation where a new

administration doesn’t like a duly enacted rule and attempts to insulate the lower

court’s judgment vacating the disfavored rule from further appellate review.

Clarifying that all lower court decisions and judgments should be vacated

under these circumstances would have both immediate and long-term salutary

effects. First, the current administration will be required to do what every

26 administration before it did with existing rules they didn’t like—promulgate a new

rule subject to all of the procedural protections provided by the APA. Second, the

thicket of suspect lower-court precedents created by the Public Charge litigation,

which the Supreme Court seemed poised to correct before the parties’ voluntary

dismissal, would be cleared away instead of remaining as a calcified obstacle to

future executive discretion. And third, future administrations (and courts, and

challengers) will be incentivized to follow the APA’s rules, rather than attempt

procedural workarounds that eliminate the public’s participation in administrative

rulemaking.22

Our court should have allowed the states to intervene in these suits. But one

hopes that maybe our incorrect denial of intervention may be as inconsequential as

the panel majority’s prior incorrect opinion, once the Supreme Court makes clear

22 There is one additional reason why Munsingwear vacatur of the lower courts’ decisions would be particularly appropriate in the context of the Public Charge rule. By design, the federal government’s and plaintiffs’ coordinated dismissals act to replace the Trump Administration’s Public Charge rule with the Clinton Administration’s Public Charge “guidance.” Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-public- charge-rule. As discussed, under the Clinton-era guidance, a noncitizen who is entirely dependent on in kind government support—for food, housing, medical care, etc.—cannot be considered a “public charge” unless he also receives cash benefits. That seems like it might run into problems under the APA. But the government’s circumvention of the APA allowed it to slip back into applying the old guidance without even needing to take that into consideration. 27 that our dirty slate must be wiped clean under Munsingwear—and with it, all its

inequitable repercussions.

28