USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 1 of 9 ORAL ARGUMENT PREVIOUSLY SCHEDULED MARCH 31, 2017 No. 16-5287 IN THE UNITED STATES COURT OF APPEALS FOR THE DISTRICT OF COLUMBIA CIRCUIT Save Jobs USA, Plaintiff-Appellant, v. United States Department of Homeland Security, Defendant-Appellee. ON APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA No. 15-cv-615 The Hon. Tanya S. Chutkan DEFENDANT-APPELLEE S OPPOSITION TO PUTATIVE-INTERVENER S MOTION TO INTERVENE CHAD A. READLER EREZ REUVENI Acting Assistant Attorney General Senior Litigation Counsel Civil Division P.O. Box 878, Ben Franklin Station United States Department of Justice Washington, DC 20044-0878 Telephone: (202) 307-4293 WILLIAM C. PEACHEY Direct, Office of Immigration Attorneys For Defendant- Litigation, District Court Section Appellant
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 2 of 9 On March 6, 2017, without conferring with undersigned counsel or seeking the Government s position, putative interveners Immigration Voice, an organization, and three individuals filed a motion seeking to intervene as of right and permissively in the appeal. See Mot. to Intervene at 1-21. Defendant-Appellee, the Department of Homeland Security, opposes the motion. The Movants are not entitled to intervene as of right under Fed. R. Civ. P. 24(a) because they have not established that the United States does not adequately represent their stated interests in this litigation. And because their motion for leave to permissibly intervene under Rule 24(b) invokes the same grounds as their Rule 24(a) motion, it should be denied for same reasons as well. Moreover, both motions are entirely premature, given the Court s instruction that the actual named parties submit motions directed at how to proceed on April 3, 2017. See Order, Feb. 10, 2017. Intervention as of right is unwarranted where existing parties adequately represent [the movant s] interest in the litigation. Fed. R. Civ. P. 24(a)(2); Akiachak Native Cmty. v. United States DOI, 827 F.3d 100, 10809 (D.C. Cir. 2016). Here, Movants do not contend that their interests are distinct from the Department of Homeland Security s. To the contrary, they seek to argue, exactly as the Department argued in district court, that the Secretary of Homeland Security has statutory authority to issue, through notice and comment rulemaking, a rule, 1
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 3 of 9 Employment Authorization for Certain H-4 Dependent Spouses, 80 Fed. Reg. 10284-10312 (Feb. 25, 2015), which permits certain so-called H-4 visa holders, 1 see 8 U.S.C. 1101(a)(15)(H), to apply for, and if deemed eligible, to receive work authorization from the Secretary of Homeland Security. See Mot. at 11-19. That alone is reason to deny the motion. See, e.g., Building & Construction Trades Department, AFL-CIO v. Reich, 40 F.3d 1275, 1282 (D.C. Cir. 1994) (holding that an employer s motion to intervene as a defendant was properly denied under Rule 24(a) when the employer offered no argument not also pressed by the government). Instead, Movants contend they are entitled to intervene as of right because they believe that the new Administration may direct [the Department of Homeland Security] not to vigorously defend the lower court s decision finding Save Jobs USA lacked standing and upholding the Rule. Mot. at 17. In making this assertion, Movants rely on the Defendant-Appellee s motion to hold proceedings in abeyance, granted by this Court on February 10, 2017, in which the Government stated that it respectfully requests a 60-day abeyance of the case, to and including April 2, 2017... to allow incoming leadership personnel adequate 1 H-4 visas are visas issued pursuant to 8 U.S.C. 1101(a)(15)(H), by United States Citizenship and Immigration Services to immediate family members (spouse and children under 21 years of age) of H-1B visa holders. See 8 U.S.C. 1101(a)(15)(H). 2
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 4 of 9 time to consider the issues, Abeyance Mot. at 3. Movants contend that this evinces an intent by the new administration to take action concerning the Rule outside of the notice and comment rule making process. Mot. at 17. There are three problems with Movants contention. First, any speculation as to possible inadequacy of representation in the future does not justify intervention. Rule 24(a) speaks in the present tense adequately represent and the United States is unaware of any case in which a movant was preemptively permitted to intervene as of right where the existing parties continued to adequately represent its interests at the time of the motion. Indeed, the mere change from one presidential administration to another, a recurrent event in our system of government, should not give rise to intervention as of right in ongoing lawsuits. United States v. City of Los Angeles, 288 F.3d 391, 403 (9th Cir. 2002); see Maine v. Dir., United States Fish & Wildlife Serv., 262 F.3d 13, 21 (1st Cir. 2001) (rejecting argument that change of administration makes the [Government s] representation inadequate absent any evidence supporting that claim). In the event the Department of Homeland Security does initiate a notice and comment rulemaking affecting the Rule at issue in this case, Movants may participate in that rulemaking and challenge any final agency Rule thereafter. But such a scenario is clearly not presented here, and arguments to the contrary are speculation. 3
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 5 of 9 Second, the Government has not in any pleading or public statement indicated any intention not to defend the Rule at issue in this appeal, and its request to allow incoming leadership adequate time to consider the issues speaks for itself. Although the fact that an incoming President may have issued statements expressing a view on an issue is not a sufficient basis for intervention, see City of Los Angeles, 288 F.3d at 403 (denying intervention even though numerous media stories reporting comments made by President Bush on several occasions expressing his dislike for this specific type of lawsuit ), the Movants do not identify any statement by the President or an official in the new administration regarding the Rule at issue in the appeal, much less this litigation in its current stage. Finally, given the Court s order that the parties are directed to file motions to govern future proceedings in this case by April 3, 2017, Order, Feb. 10, 2017 (emphasis added), Movants motion is entirely premature, as its argument may become illusory depending on future actions by both parties as of that date. As to their motion for permissive intervention, Movants concede the only basis they have for this request is the same reason[] stated [] that intervention should be granted as of right, Mot. at 20, i.e. their speculation that that the new Administration may direct [the Department of Homeland Security] not to vigorously defend the lower court s decision finding Save Jobs USA lacked 4
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 6 of 9 standing and upholding the Rule. Id. at 17. Accordingly, the request for permissive intervention should be denied for the same reasons the request to intervene as of right should be denied. See In re Vitamins Antitrust Class Actions, 215 F.3d 26, 31-32 (D.C. Cir. 2000) (holding Rule 24(b) motion should be denied where the basis for appellants motion for permissive intervention is the same as the basis for its quest for intervention as of right, and the motion to intervene as of right is denied). Regardless, as to both Rule 24(a) and (b), this Court will allow intervention at the appellate stage where none was sought in the district court only in an exceptional case for imperative reasons, Amalgamated Transit Union Int l, AFL- CIO v. Donovan, 771 F.2d 1551, 1552 (D.C. Cir. 1985) (per curiam) (citations omitted), and Movants point to no Circuit authority finding such exceptional and imperative circumstances where a motion is based on the bare speculation that a new administration may not defend an appeal initiated by a private party during the prior administration. Indeed, given that they waited nearly two years to seek intervention, the contrary is true. Cf. Peruta v. County of San Diego, 771 F.3d 570, 572 (9th Cir 2014) ( That this case is now on appeal rather than in the district court further suggests that the motions to intervene are untimely. ). In sum, this Court should deny Movants request to intervene as of right and for permissive intervention, which are both premised on bare speculation that the 5
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 7 of 9 Department of Justice will not defend the rulemaking at issue in this appeal. And it should deny the motions for the separate reason that the parties have yet to submit their motions to govern future proceedings in this matter, rendering any request to intervene entirely premature. Dated: March 16, 2017 Respectfully submitted, CHAD A. READLER Acting Assistant Attorney General Civil Division WILLIAM C. PEACHEY Director Office of Immigration Litigation District Court Section GLENN M. GIRDHARRY Assistant Director By: /s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel United States Department of Justice P.O. Box 868, Ben Franklin Station Washington, DC 20044 Phone: (202) 307-4293 Erez.r.reuveni@usdoj.gov Attorneys for Defendant-Appellee 6
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 8 of 9 CERTIFICATE PURSUANT TO FED. R. APP. P. 32(A)(7)(C) AND CIRCUIT RULE 32(e) Pursuant to Fed. R. App. P. 27 and D.C. Circuit Rule 27(d)(2), the attached motion is proportionately spaced, has a typeface of 14 points or more, and contains 1,252 words, not including those section excluded from the word count under applicable rules. s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel 7
USCA Case #16-5287 Document #1666445 Filed: 03/16/2017 Page 9 of 9 CERTIFICATE OF SERVICE I hereby certify that I electronically filed the foregoing with the Clerk of the Court for the United States Court of Appeals for the District of Columbia by using the appellate CM/ECF system on March 16, 2017. s/ Erez Reuveni EREZ REUVENI Senior Litigation Counsel 8