FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

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 

No. 23-16032 

D.C. No. 4:18-cv06810-JST 

ORDER
2 EAST BAY SANCTUARY COVENANT V. BIDEN

PROTECTION, 

Defendants-Appellants.

Filed May 22, 2024

Before: William A. Fletcher, Richard A. Paez, and 

Lawrence VanDyke, Circuit Judges.

Order;

Dissent by Judge VanDyke

SUMMARY*

Immigration/Intervention

In a case in which the government appeals the district 

court’s order vacating the government’s rule, Circumvention 

of Lawful Pathways (“the Rule”), the panel issued an order 

denying a motion to intervene filed by the States of 

Alabama, Kansas, Georgia, Louisiana, and West Virginia 

(“the States”). 

Noting that the appeal is currently in abeyance for 

settlement discussions, the majority explained that the States 

sought to intervene to participate in settlement negotiations 

and possibly to object to any proposed settlement and to 

request that the court stay its order. The panel observed that 

* This summary constitutes no part of the opinion of the court. It has 

been prepared by court staff for the convenience of the reader.
EAST BAY SANCTUARY COVENANT V. BIDEN 3

it was unaware of any instance where a court permitted 

intervention at the appellate stage while the case was held in 

abeyance for settlement negotiations. 

Because no statute or rule governs intervention on 

appeal, the policies underlying Federal Rule of Civil 

Procedure 24 guided the majority’s analysis. 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.

The majority concluded that the States had not shown 

that they have a “significant protectible interest” in either: 

1) maintaining the Rule or in reducing immigration into the 

United States; or 2) minimizing their expenditures and 

preserving their population-based political 

representation. Because that failure alone was a sufficient 

ground to deny intervention as of right, the majority did not 

reach the remaining factors.

For similar reasons, the majority declined to exercise its 

discretion to allow the States to intervene permissively, 

explaining that the nature and extent of the States’ interest in 

this appeal are far too attenuated to support intervention.

Dissenting, Judge VanDyke would grant the States’ 

motion to intervene as of right. Judge VanDyke explained 

that this court has continually acknowledged that it should 

construe Rule 24(a)’s requirements of intervention as of 

right liberally and broadly in favor of proposed 

intervenors. Under this lenient standard, Judge VanDyke 

concluded that: (1) the States’ motion was timely because 
4 EAST BAY SANCTUARY COVENANT V. BIDEN

they acted swiftly after the court granted the parties’ 

unexpected motion to stay; (2) the States’ interests would 

clearly be harmed by a settlement that negates the effect of 

the Rule because they would be forced to bear the additional 

costs of illegal immigration into their territories; and (3) the 

federal government’s openness to settlement discussion after 

months of aggressively defending the Rule evinces a change 

in position such that it no longer adequately represents the 

States’ interests.

COUNSEL

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 
EAST BAY SANCTUARY COVENANT V. BIDEN 5

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 
6 EAST BAY SANCTUARY COVENANT V. BIDEN

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.
EAST BAY SANCTUARY COVENANT V. BIDEN 7

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 
8 EAST BAY SANCTUARY COVENANT V. BIDEN

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 

(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 

1 Other circuits similarly distinguish between intervention at the district 

court and intervention on appeal. See Richardson v. Flores, 979 F.3d 

1102, 1105 (5th Cir. 2020) (noting there is a “steep threshold for 

allowing intervention on appeal”); Pub. Serv. Co. of N. M. v. Barboan, 

857 F.3d 1101, 1113 (10th Cir. 2017) (“Though we usually take a liberal 

view of Rule 24(a), when an applicant has not sought intervention in the 

district court, we permit it on appeal ‘only in an exceptional case for 

imperative reasons.’” (quoting Elliott Indus. Ltd. P’ship v. BP Am. Prod. 

Co., 407 F.3d 1091, 1103 (10th Cir. 2005))); Hall v. Holder, 117 F.3d 

1222, 1231 (11th Cir. 1997) (“A court of appeals may, but only in an 

exceptional case for imperative reasons, permit intervention where none 

was sought in the district court.” (quoting McKenna v. Pan Am.

Petroleum Corp., 303 F.2d 778, 779 (5th Cir. 1962))); Amalgamated 

Transit Union Int’l, AFL-CIO v. Donovan, 771 F.2d 1551, 1552–53, 

1553 n.3 (D.C. Cir. 1985) (“A court of appeals may allow intervention 

at the appellate stage where none was sought in the district court ‘only 

in an exceptional case for imperative reasons.’” (quoting Landreth, 731 

F.2d at 1353)); In re Grand Jury Investigation, 587 F.2d 598, 601 (3d 

Cir. 1978) (“Those courts which have considered the question have 

recognized that while a court of appeals has power to permit intervention 

that power should be exercised only in exceptional circumstances for 

imperative reasons.”); see also Ass’n for Educ. Fairness v. Montgomery 

Cnty. Bd. of Educ., 88 F.4th 495, 499 (4th Cir. 2023) (discussing the 

unique concerns raised by appellate intervention).
EAST BAY SANCTUARY COVENANT V. BIDEN 9

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 

(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 

2 The dissent is correct that we generally construe Rule 24(a)(2)’s 

requirements for intervention as of right in the district court “broadly in 

favor of proposed intervenors.” Wilderness Soc’y, 630 F.3d at 1179. 

Even so, we see nothing to suggest that Bates and Landreth—which 

counsel that appellate intervention requires closer scrutiny—have been 

overruled. See Bates, 127 F.3d at 873; Landreth, 731 F.2d at 1353. This 

is not to say that intervention at the appellate stage is impossible. We 

have, in appropriate circumstances, permitted intervention when the 

relevant factors are satisfied. See Peruta v. Cnty. of San Diego, 824 F.3d 

919, 940 (9th Cir. 2016); Day, 505 F.3d at 966.
10 EAST BAY SANCTUARY COVENANT V. BIDEN

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 (2023); see also 

Sure-Tan, Inc. v. NLRB, 467 U.S. 883, 897 (1984); Linda 

R.S. v. Richard D., 410 U.S. 614, 619 (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, 

3 Although Texas is about Article III standing, it holds that absent other 

circumstances, states cannot assert an interest in procuring greater

immigration enforcement. See 599 U.S. at 677, 681–83. The dissent 

cites no case for the proposition that the States can assert such an interest

merely because the Rule’s lawfulness is at issue. We decline to reach a 

conclusion contrary to the principles articulated by the Supreme Court in 

Texas.
EAST BAY SANCTUARY COVENANT V. BIDEN 11

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 

are the backbone of [the] litigation”).5

We therefore conclude that the States lack the requisite 

significant protectable interest to support intervention as of 

right under Rule 24(a). “Because that failure alone is a 

sufficient ground to deny intervention as of right,” we do not 

reach the remaining factors. See Cooper, 13 F.4th at 865

(citing Perry v. Proposition 8 Off. Proponents, 587 F.3d 947, 

950 (9th Cir. 2009)).

For similar reasons, we decline to exercise our discretion 

to allow the States to intervene permissively. See Fed. R. 

Civ. P. 24(b)(1)(B); Cameron, 595 U.S. at 278–79 

(“Resolution of a motion for permissive intervention is 

4 The States allege that elimination of the Rule would cause increased 

immigration, and that at least some immigrants would end up in their 

states and thus strain state resources. As this causal chain demonstrates, 

the States’ asserted interest in minimizing expenditures is thus removed 

from the “subject of the action”—and predicated on an alleged interest 

in procuring greater immigration enforcement. Fed. R. Civ. P. 24(a)(2).

5 See also Med. Liab. Mut. Ins. Co. v. Alan Curtis LLC, 485 F.3d 1006, 

1008 (8th Cir. 2007)) (“Economic interests or interests contingent on a 

sequence of events are generally insufficient for mandatory 

intervention.”); United States v. Peoples Benefit Life Ins. Co., 271 F.3d 

411, 415 (2d Cir. 2001) (“An interest that is remote from the subject 

matter of the proceeding, or that is contingent upon the occurrence of a 

sequence of events before it becomes colorable, will not satisfy the rule.” 

(quoting Wash. Elec. Coop., Inc. v. Mass. Mun. Wholesale Elec. Co., 922 

F.2d 92, 97 (2d Cir. 1990)).
12 EAST BAY SANCTUARY COVENANT V. BIDEN

committed to the discretion of the court before which 

intervention is sought.”). The “nature and extent” of the 

States’ interest in this appeal are far too attenuated to support 

intervention. Perry, 587 F.3d at 955.

Accordingly, the States’ Motion to Intervene is 

DENIED.

VANDYKE, Circuit Judge, dissenting:

Our court has continually acknowledged that we should 

construe Rule 24(a)(2)’s requirements for intervention as of 

right “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); see also Sw. Ctr. for 

Biological Diversity v. Berg, 268 F.3d 810, 818 (9th Cir. 

2001) (“In general, we construe Rule 24(a) liberally in favor 

of potential intervenors.”); U.S. ex rel. McGough v. 

Covington Techs. Co., 967 F.2d 1391, 1394 (9th Cir. 1992). 

We have explained that this “liberal policy in favor of 

intervention serves both efficient resolution of issues and 

broadened access to the courts.” Wilderness Soc’y, 630 F.3d 

at 1179 (quoting United States v. City of Los Angeles, 288 

F.3d 391, 397–98 (9th Cir. 2002)). Yet the majority once 

again inexplicably throttles this standard by cursorily 

denying the States’ request to intervene in this case. This 

continues a troubling trend by our court of denying 

intervention whenever it might upset a possible collusive 

settlement resulting in a favored policy. See, e.g., City & 

County of San Francisco v. USCIS, 992 F.3d 742 (9th Cir. 
EAST BAY SANCTUARY COVENANT V. BIDEN 13

2021); Cooper v. Newsom, 26 F.4th 1104 (9th Cir. 2022).1 

That is not what I think our court meant when it said “we 

construe Rule 24(a) liberally,” so I must respectfully dissent.

When analyzing a motion to intervene as of right, we 

apply a four-part test: “(1) the motion must be timely; (2) the 

applicant must claim a ‘significantly protectable’ 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 its ability to protect that interest; and (4) the 

applicant’s interest must be inadequately represented by the 

parties to the action.” Wilderness Soc’y, 630 F.3d at 1177 

(quoting Sierra Club v. EPA, 995 F.2d 1478, 1481 (9th Cir. 

1993)). The States’ motion here was timely because they 

acted swiftly after we granted the parties’ unexpected motion 

to stay. Their interests would clearly be harmed by a 

settlement that negates the effect of the Rule because they 

would be forced to bear the additional costs of illegal 

immigration into their territories. And the federal 

government’s openness to settlement discussions after 

months of aggressively defending the Rule evinces a change 

in position such that it no longer adequately represents the 

States’ interests. I therefore would grant the States’ motion 

to intervene as of right.

I. The States’ Motion Was Timely.

As an initial matter, only the organizational plaintiffs 

contest the timeliness of the States’ motion—the federal 

government does not. “Timeliness is to be determined from 

1 Compare Peruta v. County of San Diego, 824 F.3d 919, 940–41 (9th 

Cir. 2016) (granting California’s motion to intervene at the appellate 

stage to argue against the Second Amendment). 
14 EAST BAY SANCTUARY COVENANT V. BIDEN

all the circumstances ... by the court in the exercise of its 

sound discretion.” NAACP v. New York, 413 U.S. 345, 366 

(1973). In making this determination, we generally look to 

“(1) the stage of the proceeding, (2) the prejudice to other 

parties, and (3) the reason for and length of the delay.” Day 

v. Apoliona, 505 F.3d 963, 965 (9th Cir. 2007) (cleaned up) 

(citation omitted).

The majority relies heavily on the first factor, 

emphasizing the appellate posture of these proceedings. The 

majority makes much of this fact, citing cases in which, 

notwithstanding the generally permissive standard for 

intervention, our court and others have rejected attempts to 

intervene at the appellate stage after failing to seek 

intervention before the district court. But it is not at all clear 

from the cited cases that this or any other circuit has adopted 

a rule under which the mere fact that a proceeding has 

reached the appellate stage, standing alone, is a particularly 

relevant factor. In my view, there is nothing particularly 

unique about the “appellate” nature of the proceedings 

except that often it is a good proxy for the fact that a case has 

already been going on for quite a long time and the putative 

intervenors could have sought to intervene earlier. Under 

ordinary circumstances, a case that has already been 

appealed would have afforded a potential intervenor more 

than adequate time to intervene and protect its interests. 

Thus, there is often a good reason to conclude a motion to 

intervene is untimely where the intervenor had notice that its 

rights were not adequately protected by the parties before the 

district court, yet nonetheless declined to seek intervention 

at that stage.

But, as illustrated by these proceedings, it can also be the 

case that an intervenor’s rights were adequately protected 

until a party abruptly changed its position at the appellate 
EAST BAY SANCTUARY COVENANT V. BIDEN 15

stage. Under such circumstances, it makes little sense to 

conclude that a motion to intervene, brought promptly after 

the intervenor discovered its interests were no longer 

adequately represented, is untimely just because the party 

waited until the appeal stage to abruptly change its litigation 

posture. Instead of applying the majority’s wooden, 

inflexible standard that apparently accounts for nothing 

more than the stage of the proceeding, we would do well to 

remember that the “most important circumstance relating to 

timeliness is that the [States] sought to intervene as soon as 

it became clear that [their] interests would no longer be 

protected by the parties in the case.” Cameron v. EMW 

Women’s Surgical Ctr., P.S.C., 595 U.S. 267, 279–80 (2022) 

(cleaned up and emphasis added). That “most important” 

consideration strongly weighs in favor of intervention here.

Not only does the majority dramatically overread the 

supposed rule from its lead case, Bates v. Jones, but the result

in that case actually supports granting the States’ request for 

intervention. 127 F.3d 870 (9th Cir. 1997). In Bates, the 

state raised for the first time after oral argument before this 

court a position that would imperil the intervenors’ 

interests—as our court noted, “[u]ntil that assertion, the 

proposed intervenors believed that they would be able to 

benefit from a favorable ruling by this court.” Id. at 873. 

Similarly, the federal government here did not raise the 

prospect of a settlement that could affect the States’ interest 

in the Rule until after we had already heard oral argument. 

Until then, the government’s vigorous defense of the Rule 

led the States to reasonably believe that their interests were 

adequately represented. The Bates court ultimately 

considered the motion to intervene timely even on appeal 

because the intervenors were not aware until then that their 

interests would no longer be protected. Id. The States’ 
16 EAST BAY SANCTUARY COVENANT V. BIDEN

motion here is timely for the same reason: the States were 

understandably unaware of any possibility that their interests 

were not adequately being protected until the government 

changed its position on defending the Rule by seeking an 

abeyance from this court after oral argument was heard.

The other cases cited by the majority do not support the 

majority’s rule because none of them involve a case where a 

party vigorously defended the intervenor’s interests until 

changing course at the last minute during the appeal. For 

example, in Landreth Timber Co. v. Landreth, the 

intervenors sought to intervene at the appellate stage 

“without stating any reason for failure to intervene in the 

district court” beyond wanting to avail themselves of a legal 

doctrine that was already implicated in the defendants’ 

litigation position. 731 F.2d 1348, 1353 (9th Cir. 1984), 

rev’d on other grounds, 471 U.S. 681 (1985). The Landreth

court found it important that “intervention would raise new 

issues of fact and law not before the district court.” Id. In 

this case, by contrast, the States have provided a compelling 

reason for not intervening earlier: their interests were 

adequately protected by the government’s then-ongoing 

defense of the Rule. And because the States merely seek to 

continue the same defense that the government might now 

abandon, their intervention introduces no new issues of fact 

or law.2

2 The remaining cases cited by the majority are similarly distinguishable. 

For example, in Public Service Company of New Mexico v. Barboan, the 

party with whom the intervenor’s interests aligned continued to “have 

the same legal objective” throughout the case and the intervenor “had 

ample opportunity to be heard at the district court and declined to do so.” 

857 F.3d 1101, 1113–14 (10th Cir. 2017). And in Amalgamated Transit 

Union International, AFL-CIO v. Donovan, “the alleged conflict of 

interest between [the intervenor] and the [party] existed at the 
EAST BAY SANCTUARY COVENANT V. BIDEN 17

The Fourth Circuit case cited by the majority is even less 

relevant, and the majority’s reliance on it is especially 

puzzling. In Association for Education Fairness v. 

Montgomery County Board of Education, the intervenors 

actually sought intervention in the district court, 88 F.4th 

495, 499 (4th Cir. 2023), which already suggests that it is 

nothing like the present case. And when the district court 

finally denied their motion to intervene, it did so not 

“because it was unwarranted under” Rule 24, but because 

“the intervention question had been rendered academic by 

its decision to enter a final judgment for the parties on whose 

side the organizations sought to intervene.” Id. After the 

adverse party appealed that judgment, the intervenors again 

sought to intervene.

Because the intervention issue was unnecessary until the 

appeal was initiated, the Fourth Circuit “reject[ed] the 

argument that the organizations delayed unduly in seeking to 

bring the intervention issue before th[e] Court.” Id. at 500. 

That court then analyzed the other intervention factors and, 

although it determined the question of “whether the existing 

parties [would] adequately protect the organizations’ 

interests” was a “close one,” it ultimately found this factor 

unsatisfied for the straightforward reason that the party 

“unambiguously represented to th[e] Court” that it intended 

to defend the position advanced by the intervenors. Id. at 

500–01. Because that issue was close, the Fourth Circuit 

denied the motion to intervene without prejudice so that the 

commencement of th[e] litigation,” so the reasons provided for 

intervention on appeal “would have been equally applicable at much 

earlier stages of th[e] case.” 771 F.2d 1551, 1554 (D.C. Cir. 1985). In 

none of the cases cited by the majority did the party that ostensibly 

protected the intervenor’s interests abandon its defense of those interests 

at the appellate stage. 
18 EAST BAY SANCTUARY COVENANT V. BIDEN

intervenors could renew their request if the party failed to 

fulfill its promise to advance that position. Id. at 502. As 

the Fourth Circuit denied intervention on the sole basis that 

the intervenors’ interests were adequately represented—a 

prong of the intervention analysis entirely unrelated to the 

majority’s rationale here—Education Fairness cannot 

support the majority’s supposed rule that a motion to 

intervene presented on appeal is untimely. 

To reiterate, none of the cases cited by the majority 

where a court denied intervention at the appeal stage as 

untimely involve anything even close to this situation, where 

the federal government vigorously defended the Rule but 

then appears poised to abandon its position on appeal. The 

majority brusquely notes that it is “unaware of any instance 

where a court has permitted intervention” under these unique 

circumstances, but that observation cuts both ways: the lack 

of precedent going either way is hardly surprising given that 

it is a rare thing indeed for the government to pull this kind 

of surprising switcheroo after litigating a case all the way 

past oral argument on appeal. The government’s highly 

unusual behavior not only explains why intervention is 

justified; it makes one wonder if the parties are engaging in 

“rulemaking-by-collective-acquiescence” or some other 

collusive strategy designed to lessen the political impact of 

this litigation during an election year. Arizona v. City & 

County of San Francisco, 596 U.S. 763, 766 (2022) 

(Roberts, C.J., concurring) (quoting City & County of San 

Francisco v. USCIS, 992 F.3d 742, 744 (9th Cir. 2021) 

(VanDyke, J., dissenting)). 

Regardless, the bottom line in a case like this is 

ultimately pretty simple: where the States “sought to 

intervene as soon as it became clear that [their] interests 

would no longer be protected by the parties in the case,” their 
EAST BAY SANCTUARY COVENANT V. BIDEN 19

motion is not untimely simply because it was filed at the 

appeal stage. Cameron, 595 U.S. at 279–80 (cleaned up).3 

In contrast to the majority’s string cite of dissimilar cases, a 

more analogous situation to the present circumstance is the 

Supreme Court’s practice of appointing an amicus to argue a 

position before the Supreme Court where a party is no longer 

willing to do so. See, e.g., Mata v. Lynch, 576 U.S. 143, 147 

(2015) (“And because the Federal Government agrees with 

Mata that the Fifth Circuit had jurisdiction over his appeal, 

we appointed an amicus curiae to defend the judgment 

below.”). Like many situations in which the Supreme Court 

is faced with substantial, unexpected agreement between 

adverse parties, here, the government has now indicated it 

may take a joint position with the plaintiffs, leaving no one 

to argue for the validity of the Rule. The States don’t seek 

to make any new arguments; they just want to continue to 

advance the same position that may be abandoned by the 

government. If the practice of allowing a third party to argue 

3 The majority emphasizes that intervention at the appellate stage is not 

“impossible,” citing two cases, one of which is Peruta, in which 

California was permitted to intervene in order to argue against the 

Second Amendment. Aside from furthering the ugly perception that our 

intervention standard may implicitly differ based on a putative 

intervenor’s position on the merits, cases like Peruta actually support 

intervention here. In Peruta, our court granted California’s motion to 

intervene at the appellate stage because, even though “California sought 

to intervene at a relatively late stage in the proceeding,” it “had no strong 

incentive to seek intervention ... at an earlier stage, for it had little reason 

to anticipate” that its interests would not be protected. 824 F.3d at 940. 

Sound familiar? Similarly, in Day, we granted Hawaii’s motion to 

intervene at the appellate stage and recognized that “[a] would-be 

intervenor’s delay in joining the proceedings is excusable when the 

intervenor does not know or have reason to know that his interests might 

be adversely affected by the outcome of litigation.” 505 F.3d at 965 

(cleaned up).
20 EAST BAY SANCTUARY COVENANT V. BIDEN

a neglected position is good enough for an appeal before the 

Supreme Court, it should be good enough for this appellate 

court. 

We are particularly likely to conclude a motion to 

intervene on appeal is timely where the parties have not 

alleged any prejudice. See Bates, 127 F.3d at 874 (“Like 

other cases in which intervention has been allowed on 

appeal, the state does not assert that it will be prejudiced by 

intervention, and we find no reason to think otherwise.”); 

Peruta, 824 F.3d at 940 (granting California’s motion to 

intervene at the appellate stage because even though the state 

“sought to intervene at a relatively late stage in the 

proceeding,” “the timing of California’s motion to intervene 

did not prejudice Plaintiffs”). Here, neither the plaintiffs nor 

the government have alleged they would be prejudiced by 

granting the States’ motion to intervene. The second factor 

therefore also supports the timeliness of the States’ motion 

for intervention.

As discussed above, “the most important circumstance 

relating to timeliness,” Cameron, 595 U.S. at 279–80, 

involves the third prong: if the States delayed, and their 

reasons for doing so. The critical date for assessing delay is 

“when proposed intervenors should have been aware that 

their interests would not be adequately protected by the

existing parties.” W. Watersheds Project v. Haaland, 22 

F.4th 828, 836 (9th Cir. 2022) (citation omitted). The States 

argue that they were unaware that their interests were not 

being protected by the government until the filing of the joint 

motion to hold the appeal in abeyance. And for good reason: 

the government actually defended the Rule until that time.

The plaintiffs argue that in spite of the government’s 

defense of the Rule, the States should have known that their 
EAST BAY SANCTUARY COVENANT V. BIDEN 21

interests would not be protected because of the 

administration’s hostility to the States’ general policy 

preferences. But just because the States may have general 

policy preferences different than the administration’s does 

not mean that they have opposing interests in every case. 

The very case the plaintiffs rely on highlights this issue. In 

United States v. Washington, we denied intervention because 

of years-long, ongoing hostility regarding the actual 

litigation in that case. 86 F.3d 1499, 1503–04 (9th Cir. 

1996). Here, the government initially defended the Rule, a 

litigation position that aligned with the States’ interests. So 

even assuming the States may disagree with many of the 

government’s immigration positions, their interests were 

aligned in this litigation by the government’s continued 

defense of the Rule. Their interests only ceased to be 

adequately protected once the government gave up its 

defense of the Rule and entered into settlement negotiations.

Furthermore, endorsing the plaintiffs’ position would 

have wide-reaching implications for future litigation. Their 

argument is essentially that the States should have moved to 

intervene at the very beginning of this litigation because 

their policy positions made them generally distrustful of this 

administration’s commitment to defending our nation’s 

immigration laws. If we applied this reasoning, then any 

state with different policy positions than a current 

administration would have to intervene at the beginning of 

any suit against the government it could have an interest in—

or essentially waive its intervention rights entirely. Given 

the diversity of policy opinions in this country, there would 

conceivably always be some states generally at odds with an 

administration, and those states would be saddled with the 

burden of seeking to intervene in every case against the 

federal government, even where the government has acted 
22 EAST BAY SANCTUARY COVENANT V. BIDEN

consistently with their interests in that particular litigation. 

Part of the reason we are generally generous in allowing 

intervention, Wilderness Soc’y, 630 F.3d at 1179, is precisely 

to avoid requiring parties to seek merely prophylactic 

intervention where it’s unnecessary.

Because the government adequately represented the 

States’ interests in this litigation until it didn’t, the States 

could not have known that their interests would be 

abandoned until the parties filed their joint motion. The 

States moved swiftly to intervene after the joint motion was 

filed, and so the motion to intervene was timely. See 

Cameron, 595 U.S. at 279–80.

II. The States’ Interests Could be Impaired by a 

Disposition in This Action.

The two factors associated with the States’ interests are 

related and can be addressed together. As an initial matter, 

the States do not need Article III standing to intervene. The 

Supreme Court has told us that, in the intervention context, 

“[f]or all relief sought, there must be a litigant with 

standing.” Town of Chester v. Laroe Estates, Inc., 581 U.S. 

433, 439 (2017). So “an intervenor of right must have 

Article III standing in order to pursue relief that is different

from that which is sought by a party with standing.” Id. at 

440 (emphasis added). Because the States seek to intervene 

as defendants and seek only the same outcome as the 

government—to uphold the Rule—standing is not required.

While intervention does not necessarily require standing, 

it does require a “significantly protectable interest” that 

could be impaired by a disposition of the action. Wilderness 

Soc’y, 630 F.3d at 1177. In making this determination, we 

are guided by “practical and equitable considerations and 

construe [this requirement] broadly in favor of proposed 
EAST BAY SANCTUARY COVENANT V. BIDEN 23

intervenors.” Id. at 1179 (cleaned up). The States easily 

satisfy this permissive standard.

The States have put forward a number of interests that 

would be impaired by an abandonment of the Rule. When 

immigrants enter the country illegally and settle in a state, 

that state has mandatory duties to provide certain 

government resources to them. See, e.g., Plyler v. Doe, 457 

U.S. 202, 230 (1982) (public education); Gideon v. 

Wainwright, 372 U.S. 335, 345 (1963) (publicly funded 

counsel). And even where the States cannot provide certain 

resources to illegal immigrants because of state or federal 

law, they still incur increased administrative costs to 

determine if unlawfully present applicants are eligible. See, 

e.g., Kan. Stat. Ann. § 8-237(i); 8 U.S.C. § 1621(a), (c)(1). 

The States also assert a political interest in maintaining 

the Rule because an increase in other states’ populations 

from illegal immigration would give those states additional 

representatives, electoral votes, and federal funding, and 

necessarily take those from the states seeking intervention. 

See Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2565 

(2019). According to the government’s own data, there were 

1.7 million border encounters between October 2023 and 

March 2024 alone.4 Abandoning the Rule and increasing the 

influx of illegal immigrants therefore would have a sizeable 

and concrete impact on the States’ asserted interests.

In spite of the permissive intervention standard, the 

majority concludes that these interests are not protectable. 

In doing so, the majority relies in part on United States v. 

Texas, 599 U.S. 670 (2023). But Texas stands for the 

4 Customs and Border Protection, Nationwide Encounters, 

https://www.cbp.gov/newsroom/stats/nationwide-encounters.
24 EAST BAY SANCTUARY COVENANT V. BIDEN

proposition that states do not have standing to sue to compel 

the Executive to “alter its arrest policies so as to make more 

arrests.” Id. at 686. In coming to this conclusion, the 

Supreme Court drew from a long line of cases concluding 

judicial review does not extend to refusals of executive 

enforcement. Id. at 680 (collecting sources for the 

proposition that “federal courts are generally not the proper 

forum for resolving claims that the Executive Branch should 

make more arrests or bring more prosecutions”).

There is a clear difference between the executive’s 

nonenforcement of a rule and its effective complete removal 

of the rule altogether through collusive settlement.5 

Consider a simplistic example involving speed limits. A 

police force could decide that it will no longer enforce the 

speed limit on motorists in certain circumstances. Under 

Texas, it seems a party might not have standing to judicially 

compel the police force to enforce the speed limit. On the 

other hand, this case is more akin to a city attorney colluding 

with a plaintiff to get rid of a lawfully enacted speed limit 

altogether through settlement, rather than doing so through 

5 The Supreme Court in the Texas case itself recognized that states could 

have an interest in situations other than the exact enforcement issues 

presented in that case. For example, the Court suggested that standing 

might exist where “the Executive Branch wholly abandoned its statutory 

responsibilities to make arrests or bring prosecutions,” where “a 

challenge to an Executive Branch policy ... involves both the Executive 

Branch’s arrest or prosecution priorities and the Executive Branch’s 

provision of legal benefits or legal status,” and where a challenged policy 

governs “the continued detention of noncitizens who have already been 

arrested.” 599 U.S. at 682–83. The situation here is, if anything, even 

more distinct than those examples provided in Texas, since those 

examples were all various twists on enforcement and arrests. Here, the 

States don’t assert any interest in enforcement—merely in the underlying 

validity of the Rule itself.
EAST BAY SANCTUARY COVENANT V. BIDEN 25

proper legislative or regulatory channels. This case is not 

about refusal to enforce a rule; this case is about whether the 

rule itself is valid or not. 

The plaintiffs in this case need to be careful what they 

ask for. Reading Texas to say that affected parties have no 

protectable interest in the continuing validity (or invalidity) 

of a rule would expand it so far that even the organizational 

plaintiffs in this case would not have standing. The majority 

concludes that the States’ increased expenditures related to 

the abandonment of the Rule do not impair a protectable 

interest. But increased expenditures due to the Rule is 

exactly the injury that supposedly gives the organizational 

plaintiffs standing to sue under our precedent. See E. Bay 

Sanctuary Covenant v. Biden, 993 F.3d 640, 664 (9th Cir. 

2021). 

The majority also concludes that the effects that vacating 

the Rule might have on the States’ expenditures and political 

representation are “attenuated and speculative.” But the 

States have identified a number of concrete ways that the 

Rule protects their economic and political interests, as well 

as ways those interests would necessarily be impaired if the 

Rule were abandoned. See id. at 662–64 (relying on similar 

reasoning to explain the organizational plaintiffs’ stake in 

this litigation). As the government itself has recognized in 

this litigation, “increases in the number of migrants 

unlawfully present in the country” directly “strains [] 

government operations and resources.” That is no less true 

of the States than it is of the federal government.

At the end of the day, the standard for intervention is a 

permissive one. “Constru[ing] the [intervention] Rule 

broadly in favor of [the] proposed intervenors,” Wilderness 

Soc’y, 630 F.3d at 1179 (cleaned up), the increased 
26 EAST BAY SANCTUARY COVENANT V. BIDEN

expenditures and political harms that the States will incur if 

the Rule is abandoned represent a sufficient impairment of 

the States’ protectable interests.

III. The States’ Interests Are Inadequately Represented 

by the Government.

Like the rest of the intervention rule, this factor too is 

supposed to be permissive. Indeed, “[t]he burden of 

showing inadequacy of representation is ‘minimal’ and 

satisfied if the applicant can demonstrate that representation 

of its interests ‘may be’ inadequate.” W. Watersheds, 22 

F.4th at 840–41 (cleaned up). And like the rest of the factors, 

this lenient standard is easily satisfied here.

The government argues that it adequately represents the 

States’ interest in maintaining the Rule because it “has 

repeatedly defended the Rule’s legality.” But that was before 

the government abruptly changed course and asked to put 

this case on ice while it considers settlement. From the 

beginning of this litigation until submitting the joint motion, 

the government has made clear that the Rule is critical to the 

ongoing administration of our border.6 Consistent with this 

representation, the government vigorously defended the 

Rule in the district court and on appeal and has indicated an 

intent to petition the Supreme Court if we vacated the Rule. 

On the other hand, the organizational plaintiffs insist that the 

6 As the government explained, “[w]ithout the Rule, the expected 

increase in border encounters threatened to overwhelm the Departments’ 

‘ability to effectively process, detain, and remove, as appropriate, the 

migrants encountered,’ with attendant increases in the number of 

migrants unlawfully present in the country, strains on government 

operations and resources, health and safety concerns for migrants at 

overcrowded processing facilities, and impacts on local communities 

along the southwest border.”
EAST BAY SANCTUARY COVENANT V. BIDEN 27

Rule is contrary to law, and harms themselves and the 

immigrants they help. As I have previously observed, the 

plaintiffs’ position makes it difficult to imagine how they 

could accept any settlement less than rescission of the rule. 

See E. Bay Sanctuary Covenant v. Biden, 93 F.4th 1130, 1134 

(9th Cir. 2024) (VanDyke, J., dissenting). Therefore, the 

very fact that the government is now considering such a 

settlement suggests that its position regarding this litigation 

has significantly changed.

The States simply want to step in and continue the 

government’s previous litigation position. They have made 

clear that they oppose settlement for a number of compelling 

reasons, and so actively defending the Rule is the only way 

to continue protecting their interests. First, the States argue 

that the Rule is either lawful or it is not, and since this Court 

was poised to decide the issue before the parties filed a joint 

ruling, settlement now works only to unsettle the law. 

Second, since the factual basis for the plaintiffs’ standing is 

contested, “it would be absurd for the federal government to 

change federal policy based on litigation brought by parties 

who have no legally enforceable interest in the first place.” 

Finally, the government has represented elsewhere that the 

settlement discussions include “related policies,” and so a 

settlement could affect the interests of the States in other 

unforeseen ways. The government’s decision to enter into 

settlement negotiations rather than continue to actively 

defend the rule therefore represents a break with the States’ 

interests. And “[u]nless the [States] [are] made [parties] to 

these proceedings,” if the government settles this case no one 

will seek a final decision from this panel, “no petition for 

rehearing can be filed in this Court, and there will be no 

opportunity for the Supreme Court to consider whether to 
28 EAST BAY SANCTUARY COVENANT V. BIDEN

grant certiorari.” Day, 505 F.3d at 966. We have previously 

considered these circumstances “determinative.” Id.

Given that it is no longer clear that the government will 

continue to defend the Rule, the government’s representation 

of the States’ interests—at the very least—“may be” 

inadequate. W. Watersheds, 22 F.4th at 840. That is all that 

is required for this factor to be satisfied. Id.

* * *

The standard for intervention as of right is permissive 

and should be “construe[d] ... broadly in favor of proposed 

intervenors.” Wilderness Soc’y, 630 F.3d at 1179 (cleaned 

up). Under this lenient standard, the States’ motion is timely, 

their significantly protectable interests may be impaired by 

a disposition of this case, and those interests are inadequately 

represented by the government. I therefore would grant their 

motion to intervene. Because the States are entitled to 

intervene as of right, I do not address the States’ request for 

permissive intervention.