State of TEXAS; State of Alabama; State of Georgia; State of Idaho; State of Indiana; et al., Plaintiffs-Appellees, v. UNITED STATES of America; Jeh Charles Johnson, Secretary, Department of Homeland Security; R. Gil Kerlikowske, Commissioner of U.S. Customs and Border Protection; Ronald D. Vitiello, Deputy Chief of U.S. Border Patrol, U.S. Customs and Border of Protection; Sarah R. Saldana, Director of U.S. Immigration and Customs Enforcement; Leon Rodriguez, Defendants-Appellees, v. Jane Doe # 1; Jane Doe # 2; Jane Doe # 3, Movants-Appellants.
No. 15-40333
United States Court of Appeals, Fifth Circuit
Nov. 9, 2015
805 F.3d 653
For these reasons, I respectfully dissent.
William Ernest Havemann, Trial Attorney, Beth S. Brinkmann, Esq., U.S. Department of Justice (argued), Jeffrey A. Clair, Esq., Scott R. Mcintosh, Washington, DC, for Defendants-Appellees.
Nina Perales, Esq., Mexican-American Legal Defense & Educational Fund (argued), San Antonio, TX, Adam Paul Koh-Sweeney, Esq., Gabriel Markoff, Esq., O‘Melveny & Myers, L.L.P., San Francisco, CA, Linda J. Smith, DLA Piper, L.L.P., Los Angeles, CA, for Movants-Appellants.
Before KING, SMITH, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
Three Jane Does appeal from the denial of their motion to intervene in State of Texas v. United States, No. 15-40238. Because the Jane Does satisfy the requirements for intervention by right under
I.
In Texas v. United States, No. 15-40238, twenty-six states seek injunctive relief against the United States and several officials of the Department of Homeland Security to prevent them from implementing a
Three Jane Does sought to intervene as defendants in the Texas case. The Jane Does are aliens who have lived in the United States for more than ten years, currently live in the Rio Grande Valley, and have minor children who are United States citizens. Thus, all three Jane Does satisfy the first four criteria set forth in the DAPA Memorandum. In addition, all three Jane Does believe that they satisfy the final two DAPA criteria because they are not “enforcement priorities” and because they “present no other factors that, in the exercise of discretion, make[] the grant of deferred action inappropriate.” Accordingly, the Jane Does believe they are likely to receive grants of deferred action if DAPA goes into effect.
The States and the Government both opposed intervention in the district court. The district court denied the Jane Does’ motion to intervene, stating that the Jane Does’ “interests are adequately represented by the United States” and that “this matter [is] time sensitive and the addition of new parties will cause undue delay and prejudice.” Shortly thereafter, the district court preliminarily enjoined implementation of DAPA. The Jane Does timely appealed the denial of their motion to intervene. Although the Jane Does argued in the district court that they were entitled both to intervention by right and to permissive intervention, on appeal they argue only that they are entitled to intervention by right.
II.
“A ruling denying intervention of right is reviewed de novo.” Edwards v. City of Houston, 78 F.3d 983, 995 (5th Cir.1996) (en banc). “Although the movant bears the burden of establishing its right to intervene, Rule 24 is to be liberally construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir.2014) (citing 6 James W. Moore, et al., Moore‘s Federal Practice § 24.03[1][a] (3d ed.2008)
III.
Intervention by right is governed by
(1) the application for intervention must be timely; (2) the applicant must have an interest relating to the property or transaction which is the subject of the action; (3) the applicant must be so situated that the disposition of the action may, as a practical matter, impair or impede his ability to protect that interest; (4) the applicant‘s interest must be inadequately represented by the existing parties to the suit.
New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463 (5th Cir.1984) [NOPSI] (en banc) (internal quotation marks omitted). The Jane Does claim that they satisfy each of the four requirements of
A.
The Jane Does satisfy the “interest” requirement of
Although “this gloss on the rule” may not “provide any more guidance than does the bare term ‘interest’ used in Rule 24 itself,” Wright & Miller § 1908.1, our cases reveal that the inquiry turns on whether the intervenor has a stake in the matter that goes beyond a generalized preference that the case come out a certain way. So, an intervenor fails to show a sufficient interest when he seeks to intervene solely for ideological, economic, or precedential reasons; that would-be intervenor merely prefers one outcome to the other.3 For example, in NOPSI, a private
On the other hand, an interest that is concrete, personalized, and legally protectable is sufficient to support intervention. A property interest, for example, is “the most elementary type of right that Rule 24(a) is designed to protect,” Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir.1970), because it is concrete, specific to the person possessing the right, and legally protectable. See Moore‘s § 24.03[2][a] (“Motions to intervene in which the proposed intervenor advances a clear property interest present the easiest cases for intervention.“). Accordingly, in Diaz, we permitted intervention by the government when it sought to assert a lien on a fund before the court. 427 F.2d at 1124. Likewise, in Espy, we held that two trade associations representing timber purchasers met the “interest” requirement of
Although property interests are almost always adequate, they are not the only types of interests that can support intervention under
Moreover, although an asserted interest must be “legally protectable,” it need not be legally enforceable. In other words, an interest is sufficient if it is of the type that the law deems worthy of protection, even if the intervenor does not have an enforceable legal entitlement or would not have standing to pursue her own claim.4 For example, in Trbovich v. United Mine Workers of America, 404 U.S. 528, 537, 92 S.Ct. 630, 30 L.Ed.2d 686 (1972), the Supreme Court held that a union member was entitled to intervene by right in a suit brought by the Secretary of Labor to invalidate an election of union officers, even though federal law prohibited the union member from initiating his own suit. Another example is Black Fire Fighters Ass‘n of Dallas v. City of Dallas, 19 F.3d 992, 994 (5th Cir.1994), in which the city of Dallas entered into a consent decree with an employee group, agreeing to give a specified number of promotions to black officers who would not otherwise be chosen for promotions. A group of non-black firefighters sought to intervene, claiming that the decree interfered with their own promotion opportunities. Even though the non-black fire fighters did not have legally enforceable rights to promotions, we held that they satisfied
Edwards is similar. In that case, a police department entered into a consent decree with black and Hispanic officers, and a group of other officers sought to intervene. 78 F.3d at 989. The putative intervenors claimed that the decree “adversely affects the[ir] interests ... in having equal access to a promotion system and promotion opportunities within the HPD for the ranks of Sergeant and Lieutenant without reference to race, color, or national origin.” Id. at 1004. Sitting en banc, we reversed the district court‘s denial of intervention, explaining that a “vested interest in one of the ... target promotions is not required. Intervenor-appellants claim they are ineligible for these promotions solely on account of race.... We hold this is sufficient to confer standing to intervene.” Id. (first alteration in original) (quoting Howard v. McLucas, 782 F.2d 956, 959 (11th Cir.1986)). Although the non-black, non-Hispanic officers were not legally entitled to any promotions, their interest in being considered for a promotion was sufficient to support intervention.
More recently, in Brumfield, parents whose children received school vouchers via Louisiana‘s Scholarship Program sought to intervene in litigation between Louisiana and the federal government over the state‘s voucher program. 749 F.3d at 340.
Like the intervenors in Trbovich, Black Fire Fighters, Edwards, and Brumfield, the Jane Does have interests sufficient to support intervention. First, they have an interest in receiving deferred action under DAPA so that they may legally remain in the United States. This is not a mere generalized interest in the implementation of DAPA; rather, the Jane Does are the intended beneficiaries of the challenged federal policy. Cf. Cal. ex rel. Lockyer v. United States, 450 F.3d 436, 441 (9th Cir. 2006) (“[The proposed intervenors] are the intended beneficiaries of this law.... The proposed intervenors’ interest thus is neither ‘undifferentiated’ nor ‘generalized.‘” (internal quotation marks omitted)). The Jane Does themselves will or will not be eligible for deferred action, depending on the outcome of this case (assuming, as we must, that their factual allegations are true). Thus, although the Jane Does do not have a legal entitlement to deferred action, their interest in avoiding deportation is a concrete, personalized interest that is legally protected by the Due Process Clause of the Fifth Amendment. See Reno v. Flores, 507 U.S. 292, 306, 113 S.Ct. 1439, 123 L.Ed.2d 1 (1993) (“It is well established that the Fifth Amendment entitles aliens to due process of law in deportation proceedings.“).
Second, the Jane Does have an interest in the employment opportunities that would be available to them if they are granted deferred action and employment authorization, the former of which would make them eligible for the latter. These are the same types of interests that we deemed sufficient for intervention in Black Fire Fighters and Edwards—as in those cases, the intervenors do not have a legal entitlement to particular jobs, but their interest in having access to job opportunities is sufficiently concrete and personalized to support intervention.
Third, similar to the intervenors in Brumfield, the Jane Does have an interest in directing the upbringing of their United States-citizen children. This interest, which would be adversely affected if the Jane Does are deported, is a legally protected liberty interest under the Due Process Clause. See Troxel v. Granville, 530 U.S. 57, 66, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (“[W]e have recognized the fundamental right of parents to make decisions concerning the care, custody, and control of their children.“). Just as the parents in Brumfield had “an interest relating to” the Louisiana voucher program because of its impact on their children, the Jane Does have “an interest relating to” DAPA because of its impact on their own children.
In short, the Jane Does have a real, concrete stake in the outcome of this litigation—if DAPA is invalidated, the Jane Does will lose their opportunity to obtain deferred action and their opportunity to obtain employment authorization. The Jane Does are not individuals seeking to defend a governmental policy they support on ideological grounds; rather, they are the intended beneficiaries of the program being challenged. Just as the parents in Brumfield had a specific, concrete interest in their children‘s education, and just as the individuals in Edwards and Black Fire Fighters had a specific, concrete interest in pursuing job opportunities, the Jane Does have interests that are sufficiently concrete and specific to support their intervention by right.
B.
The Jane Does also satisfy the “inadequate representation” requirement of
Although we have characterized the intervenor‘s burden as “minimal,” Edwards, 78 F.3d at 1005, “it cannot be treated as so minimal as to write the requirement completely out of the rule,” Cajun Elec. Power Co-op., Inc. v. Gulf States Utilities, Inc., 940 F.2d 117, 120 (5th Cir. 1991) (internal quotation marks omitted); see Veasey v. Perry, 577 Fed.Appx. 261, 263 (5th Cir.2014) (“[T]his requirement must have some teeth.“). Accordingly, “our jurisprudence has created two presumptions of adequate representation” that intervenors must overcome in appropriate cases. Edwards, 78 F.3d at 1005. One presumption arises when “the would-be intervenor has the same ultimate objective as a party to the lawsuit.” Id. Another presumption arises “when the putative representative is a governmental body or officer charged by law with representing the interests of the [intervenor].” Id. If the “same ultimate objective” presumption applies, “the applicant for intervention must show adversity of interest, collusion,
Assuming arguendo that one or both presumptions apply, the Jane Does have rebutted the presumption(s) by showing adversity of interest between themselves and the Government. In order to show adversity of interest, an intervenor must demonstrate that its interests diverge from the putative representative‘s interests in a manner germane to the case. In Brumfield, for example, Louisiana and the parents had the same objective in upholding the state voucher program. However, the parents demonstrated that their interests diverged from the state‘s in certain key respects: “The state has many interests in this case—maintaining not only the [voucher program] but also its relationship with the federal government and with the courts that have continuing desegregation jurisdiction. The parents do not have the latter two interests; their only concern is keeping their vouchers.” 749 F.3d at 346. In addition, the parents took a legal position “significantly different from that of the state“; whereas the state conceded that the district court had jurisdiction over the voucher program because of a continuing desegregation order, “the parents challenge[d] that notion,” arguing that the program did not constitute state aid to private schools and thus was not subject to the continuing desegregation order. Id. Accordingly, we held that “[t]he lack of unity in all objectives, combined with real and legitimate additional or contrary arguments, is sufficient to demonstrate that the representation may be inadequate, so this requirement of Rule 24(a) is met.” Id.
In contrast, in Hopwood v. Texas, 21 F.3d 603 (5th Cir.1994), we affirmed the denial of a motion to intervene filed by the Thurgood Marshall Legal Society and Black Pre-Law Association in a case challenging Texas‘s affirmative action policy. Id. The intervenors argued, at a high level of generality, that “the State‘s interests are broader” than the intervenors’ interests because “the State must balance competing goals while [the intervenors] are sharply focused on preserving the admissions policy.” Id. at 605. However, the intervenors did not demonstrate how these allegedly divergent interests would have any impact on the state‘s defense of its affirmative action policy. Because the intervenors did not connect the allegedly divergent interests with any concrete effects on the litigation, we held that the intervenors had not carried their burden: “The proposed intervenors have not demonstrated that the State will not strongly defend its affirmative action program. Nor have the proposed intervenors shown that they have a separate defense of the affirmative action plan that the State has failed to assert.” Id. at 606; see also Brumfield, 749 F.3d at 346 (“[A] private group does not always satisfy this prong just because a governmental entity is on the same side of an issue....“); Daggett, 172 F.3d at 112 (“The general notion that the [government] represents ‘broader’ interests at some abstract level is not enough.“).
The Jane Does have carried their burden here. The Jane Does specify the particular ways in which their interests diverge from the Government‘s. Although both the Government and the Jane Does seek to uphold DAPA, the Government‘s “interests are in securing an expansive interpretation of executive authority, efficiently enforcing the immigration laws, and maintaining its working relationship with the States, who often assist it in detaining immigrants like the Jane Does.” In contrast, the Jane Does’ concerns are “to remain in their long-time home state of Texas, to retain custody of their U.S. citizen children, and to obtain work authorization, driver‘s licenses, and lawful employment so that they can provide for their families.” Cf. Trbovich, 404 U.S. at 538-39 (“[T]he Secretary has an obligation to protect the vital public interest in assuring free and democratic union elections that transcends the narrower interest of the complaining union member.“); Brumfield, 749 F.3d at 346 (although Louisiana and the federal government were
The Jane Does then identify the particular way in which these divergent interests have impacted the litigation. In order to undermine the States’ standing argument, the Government has taken the position that the States may refuse to issue driver‘s licenses to deferred action recipients. This position is directly adverse to the Jane Does, who are eligible for deferred action. The disagreement between the Government and the Jane Does on the driver‘s license issue arises directly from their divergent interests; the Government has an institutional interest in shielding its actions from state intervention through the courts, whereas the Jane Does’ interest is in working and providing for their families, for which a driver‘s license is beneficial.6 As in Brumfield, “[t]he lack of unity in all objectives, combined with real and legitimate additional or contrary arguments, is sufficient to demonstrate that the representation may be inadequate, so this requirement of Rule 24(a) is met.” 749 F.3d at 346.
The Jane Does also argue that the Government‘s misconduct in the district court has impaired the Government‘s ability to adequately represent the Jane Does’ inter-
Muriel L. HARRIS; Elsie V. Harris, Plaintiffs-Appellants, David Lee Harris, Plaintiff, v. TD AMERITRADE, INC., Defendant-Appellee.
No. 15-5220.
United States Court of Appeals, Sixth Circuit.
Oct. 8, 2015.
IV.
For the foregoing reasons, the Jane Does are entitled to intervene, by right. REVERSED and REMANDED.
Notes
- have, on the date of this memorandum, a son or daughter who is a U.S. citizen or lawful permanent resident;
- have continuously resided in the United States since before January 1, 2010;
- are physically present in the United States on the date of this memorandum, and at the time of making a request for consideration of deferred action with USCIS;
- have no lawful status on the date of this memorandum;
- are not an enforcement priority as reflected in the November 20, 2014 Policies for the Apprehension, Detention and Removal of Undocumented Immigrants Memorandum; and
- present no other factors that, in the exercise of discretion, makes the grant of deferred action inappropriate.”