Amicus Curiae Brief — Arizona, et al., Petitioners v. City and County of San Francisco, California, et al.

Supreme Court briefDec 20, 2021

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No. 20-1775

In the Supreme Court of the United States

STATE OF ARIZONA, ET AL.,

Petitioners,

CITY AND COUNTY OF SAN FRANCISCO, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

BRIEF AMICUS CURIAE OF IMMIGRATION

LAW REFORM INSTITUTE IN SUPPORT OF

PETITIONERS

CHRISTOPHER J. HAJEC

IMMIGRATION REFORM

LAW INSTITUTE

25 Massachusetts Av NW

Suite 335

Washington, DC 20001

(202) 232-5590

chajec@irli.org

LAWRENCE J. JOSEPH

Counsel of Record

1250 Connecticut Av NW

Suite 700-1A

Washington, DC 20036

(202) 355-9452

ljoseph@larryjoseph.com

QUESTION PRESENTED

The question presented is whether the Ninth

Circuit erred and/or abused its discretion in denying

Petitioners’ motion to intervene.

TABLE OF CONTENTS

Question Presented ..................................................... i

Table of Contents ....................................................... ii

Table of Authorities................................................... iv

Interest of Amicus Curiae .......................................... 1

Statement of the Case ................................................ 2

Statutory Background ......................................... 2

1999 INS actions .................................................. 4

2019 rulemaking .................................................. 5

Cook County litigation ......................................... 6

Factual Background............................................. 7

Summary of Argument............................................... 7

Argument .................................................................... 8

I. This action is not moot......................................... 8

A. The challenge to the 2019 Rule could not

become moot while the Seventh Circuit

appeal is pending. .......................................... 8

B. The challenge to the rescission of the

1999 Field Guidance is not moot. ................. 9

II. Even if this action were moot, this Court

need not dismiss on mootness grounds. ............ 10

A. There is no “unyielding jurisdictional

hierarchy” on the bases for dismissal. ........ 11

B. The plaintiffs lack Article III standing....... 13

1. The Ninth Circuit improperly relied

on plaintiffs’ pleadings to support

interim relief. ........................................ 14

2. The state and local plaintiffs lack

parens patriae standing against the

federal government. .............................. 15

3. The funding injuries are self-inflicted

and speculative...................................... 15

iii

4. Plaintiffs’ injuries fall outside the

zone of interests. ................................... 16

5. Plaintiffs’ injuries are insufficient for

an action in equity. ............................... 17

C. The federal respondents’ norm-breaking

conduct warrants dismissal as a friendly

lawsuit.......................................................... 18

III. Under the circumstances, denying

intervention was untenable. .............................. 21

Conclusion ................................................................ 22

TABLE OF AUTHORITIES

Cases

Air Courier Conference v. Am. Postal Workers

Union, 498 U.S. 517 (1991) ................................. 16

Alabama Power Co. v. Ickes,

302 U.S. 464 (1938) ............................................. 18

Alfred L. Snapp & Son v. Puerto Rico,

458 U.S. 592 (1982) ............................................. 15

Allen v. Wright,

468 U.S. 737 (1984) ............................................. 10

Arizonans for Official English v. Arizona,

520 U.S. 43 (1997) ............................................... 11

Ass’n of Data Processing Serv. Orgs., Inc. v.

Camp, 397 U.S. 150 (1970) ................................. 17

Azar v. Garza,

138 S.Ct. 1790 (2018) .......................................... 11

Bass v. Butler,

258 F.3d 176 (3d Cir. 2001) ................................ 12

Cacchillo v. Insmed, Inc.,

638 F.3d 401 (2d Cir. 2011) ................................ 14

Calderon v. Moore,

518 U.S. 149 (1996) ............................................. 10

Campbell-Ewald Co. v. Gomez,

577 U.S. 153 (2016) .......................................... 9-10

Cheng v. Boeing Co.,

708 F.2d 1406 (9th Cir. 1983) ............................. 13

Chevron, U.S.A., Inc. v. NRDC, Inc.,

467 U.S. 837 (1984) ......................................... 6, 22

Chicago & G.T. Ry. Co. v. Wellman,

143 U.S. 339 (1892) ............................................. 20

Clarke v. Sec. Indus. Ass’n,

479 U.S. 388 (1987) ............................................. 16

Cook Cty. v. Wolf,

498 F.Supp.3d 999 (N.D. Ill. 2020) ................... 7, 9

Dep’t of Homeland Sec. v. New York,

140 S.Ct. 599 (2020) ...................................... 19, 23

Ex parte Young,

209 U.S. 123 (1908) ............................................. 17

FDIC v. Meyer,

510 U.S. 471 (1994) ............................................... 3

GTE Sylvania, Inc. v. Consumers Union of the

United States, Inc., 445 U.S. 375 (1980) ............ 19

Hollingsworth v. Perry,

558 U.S. 183 (2010) ............................................. 19

Insurance Corp. of Ireland v. Compagnie des

Bauxites de Guinee, 456 U.S. 694 (1982) ........... 13

Knox v. SEIU, Local 1000,

567 U.S. 298 (2012) ......................................... 8, 19

Kokkonen v. Guardian Life Ins. Co. of Am.,

511 U.S. 375 (1994) ............................................. 13

Levin v. Commerce Energy, Inc.,

560 U.S. 413 (2010) ........................................ 12-13

Lujan v. Defenders of Wildlife,

504 U.S. 555 (1992) ............................................. 14

Lujan v. Nat’l Wildlife Fed’n,

497 U.S. 871 (1990) ....................................... 14, 16

Matter of Appletree Markets, Inc.,

19 F.3d 969 (5th Cir. 1994) ................................... 5

Moore v. Charlotte-Mecklenburg Bd. of Educ.,

402 U.S. 47 (1971) ............................................... 19

New York City Transit Authority v. Beazer,

440 U.S. 568 (1979) ............................................. 20

NRDC v. Abraham,

355 F.3d 179 (2d Cir. 2004) .................................. 5

Patterson v. McLean Credit Union,

491 U.S. 164 (1989) ............................................... 6

Pennsylvania v. New Jersey,

426 U.S. 660 (1976) ............................................. 15

Perez v. Mortg. Bankers Ass’n,

575 U.S. 92 (2015) .............................................. 5-6

Renne v. Geary,

501 U.S. 312 (1991) ............................................. 13

Rescue Army v. Municipal Court of City of Los

Angeles, 331 U.S. 549 (1947) .............................. 20

Ruhrgas Ag v. Marathon Oil Co.,

526 U.S. 574 (1999) ............................................. 11

Sinochem Int’l Co. v. Malay. Int’l Shipping Corp.,

549 U.S. 422 (2007) ............................................. 11

Speech First, Inc. v. Killeen,

968 F.3d 628 (7th Cir. 2020) ............................... 14

Steel Co. v. Citizens for a Better Env’t,

523 U.S. 83 (1998) ......................................... 11, 13

Tedori v. United States,

211 F.3d 488 (9th Cir. 2000) ................................. 5

United Airlines, Inc. v. McDonald,

432 U.S. 385 (1977) ............................................. 21

United States v. Hamburg-American Co.,

239 U.S. 466 (1916) ............................................. 12

United States v. Lee,

106 U.S. 196 (1882) ............................................. 17

United States v. Munsingwear, Inc.,

340 U.S. 36 (1950) .................................... 11-12, 19

United States v. Windsor,

570 U.S. 744 (2013) ........................................ 20-21

Utah Wilderness Alliance v. Dabney,

222 F.3d 819 (10th Cir. 2000) ............................... 5

vii

Va. House of Delegates v. Bethune-Hill,

139 S.Ct. 1945 (2019) ..................................... 14-15

Wadley S. R. Co. v. Georgia,

235 U.S. 651 (1915) ............................................. 17

Washington v. Trump,

847 F.3d 1151 (9th Cir. 2017) ............................. 14

Winter v. Natural Resources Defense Council,

Inc.,, 555 U.S. 7 (2008) ........................................ 12

Wolf v. Cook County,

140 S.Ct. 681 (2020) ...................................... 19, 23

Youngberg v. Romeo,

457 U.S. 307 (1982) ............................................. 17

Statutes

U.S. CONST. art. III............................ 7-8, 10-15, 17-22

Administrative Procedure Act,

5 U.S.C. §§ 551-706 ....................... 4-5, 7, 17-18, 20

5 U.S.C. § 702 ........................................................... 17

Immigration and Nationality Act,

8 U.S.C. §§1101-1537 ............................... 2-3, 6, 16

8 U.S.C. § 1601(1) ....................................................... 2

8 U.S.C. § 1601(2)(A) .................................................. 4

8 U.S.C. § 1601(2)(B) ................................................ 16

8 U.S.C. § 1601(5) ................................................. 4, 17

8 U.S.C. § 1601(6) ..................................................... 17

42 U.S.C. § 1396b(a)(1) ............................................ 15

Act of March 3, 1875, § 5, 18 Stat. 477 ...................... 2

Immigration Act of 1882, § 2, 22 Stat. 214................ 2

Act of March 3, 1891, § 1, 26 Stat. 1084 .................... 2

Act of March 3, 1903, § 2, 32 Stat. 1213, 1214 .......... 2

Act of March 3, 1903, § 26; 32 Stat. 1213, 1220 ........ 3

viii

Act of February 20, 1907, § 26, 34 Stat. 898, 907 ..... 3

Act of February 5, 1917, § 3, 39 Stat. 874, 875 ...... 2-3

Rules, Regulations and Orders

S.Ct. Rule 37.6 ............................................................ 1

46 Fed. Reg. 50,766 (Oct. 14, 1981) ........................... 6

Inadmissibility and Deportability on Public

Charge Grounds, 64 Fed. Reg. 28,676 (May 26,

1999) ................................................................... 4-5

Field Guidance on Inadmissibility and

Deportability on Public Charge Grounds, 64

Fed. Reg. 28,689 (May 26, 1999) ................. 4-9, 22

Inadmissibility on Public Charge Grounds, 84

Fed. Reg. 41,292 (Aug. 14, 2019) ...... 2-9, 15, 19-22

Other Authorities

Public Charge, Black’s Law Dictionary (3d ed.

1933) ...................................................................... 3

Public Charge, Black’s Law Dictionary (4th ed.

1951) ...................................................................... 3

JAMES R. EDWARDS, JR., PUBLIC CHARGE

DOCTRINE: A FUNDAMENTAL PRINCIPLE OF

AMERICAN IMMIGRATION POLICY (Center for

Immigration Studies 2001) ................................... 3

5 Gordon et al., Immigration Law and Procedure,

§ 63.05[2] (Rel. 164 2018) ..................................... 3

No. 20-1775

In the Supreme Court of the United States

STATE OF ARIZONA, ET AL.,

Petitioners,

CITY AND COUNTY OF SAN FRANCISCO, ET AL.,

Respondents.

On Writ of Certiorari to the United States Court

of Appeals for the Ninth Circuit

INTEREST OF AMICUS CURIAE

The Immigration Reform Law Institute1 (“IRLI”)

is a nonprofit 501(c)(3) public interest law firm

dedicated both to litigating immigration-related cases

in the interests of United States citizens and to

assisting courts in understanding federal immigration

law. IRLI has litigated or filed amicus curiae briefs in

a wide variety of immigration-related cases. For more

than twenty years the Board of Immigration Appeals

has solicited supplementary briefing, drafted by IRLI

staff, from the Federation for American Immigration

Reform, of which IRLI is a supporting organization.

Amicus files this brief with all parties’ written consent.

Pursuant to Rule 37.6, counsel for amicus authored this brief in

whole, no party’s counsel authored this brief in whole or in part,

and no person or entity—other than amicus and its counsel—

contributed monetarily to preparing or submitting the brief.

STATEMENT OF THE CASE

Various state, local, and private plaintiffs

challenge a final rule, Inadmissibility on Public

Charge Grounds, 84 Fed. Reg. 41,292 (Aug. 14, 2019)

(hereinafter, the “2019 Rule”), promulgated by the

federal Department of Homeland Security (“DHS”).

The 2019 Rule concerns the scope of the “public

charge” grounds for excluding an alien under the

Immigration and Nationality Act, 8 U.S.C. §§ 11011537 (“INA”). Two different district courts issued

preliminary injunctions against the 2019 Rule, and

the Ninth Circuit affirmed. After the change in

administrations, the new administration abandoned

its defense of the rule in this action and in several

other related actions. Led by Arizona, several states

moved to intervene here to defend the 2019 Rule

against the preliminary injunction. In a related action

in the Seventh Circuit, states led by Texas moved to

intervene to defend the merits of the 2019 Rule from

a district court’s partial final judgment on a portion of

the 2019 Rule.

Statutory Background

“Self-sufficiency has been a basic principle of

United States immigration law since this country’s

earliest immigration statutes.” 8 U.S.C. § 1601(1). 2

See Act of March 3, 1875, § 5, 18 Stat. 477 (excluding

convicts and sex workers, thought likely to become dependent on

the public coffers for support); Immigration Act of 1882, § 2, 22

Stat. 214 (barring admission of “any person unable to take care

of himself or herself without becoming a public charge.”); Act of

March 3, 1891, § 1, 26 Stat. 1084 (excluding “paupers”); Act of

March 3, 1903, § 2, 32 Stat. 1213, 1214 (excluding “professional

beggars”); Act of February 5, 1917, § 3, 39 Stat. 874, 875

“Strong sentiments opposing the immigration of

paupers developed in this country long before the

advent of federal immigration controls.” 5 Gordon et

al., Immigration Law and Procedure, § 63.05[2] (Rel.

164 2018). Indeed, those sentiments predated the

founding of the Nation: “American colonists were

especially reluctant to extend a welcome to

impoverished foreigners[.] Many colonies protected

themselves against public charges through such

measures as mandatory reporting of ship passengers,

immigrant screening and exclusion upon arrival of

designated ‘undesirables,’ and requiring bonds for

potential public charges.” JAMES R. EDWARDS, JR.,

PUBLIC CHARGE DOCTRINE: A FUNDAMENTAL

PRINCIPLE OF AMERICAN IMMIGRATION POLICY 2

(Center for Immigration Studies 2001) (citing E. P.

HUTCHINSON, LEGISLATIVE HISTORY OF AMERICAN

IMMIGRATION POLICY, 1798-1965 (Univ. of Penn.

Press, 1981)). Nothing about the challenged Rule is

inconsistent with the INA.

While dictionary definitions should suffice, see,

e.g., FDIC v. Meyer, 510 U.S. 471, 476 (1994) (absent

a statutory definition, “we construe a statutory term

in accordance with its ordinary or natural meaning”);

Public Charge, Black’s Law Dictionary (3d ed. 1933)

(“one who produces a money charge upon, or an

expense to, the public for support and care”); accord

Black’s Law Dictionary (4th ed. 1951), the 2019 Rule

is consistent with other INA provisions. See 8 U.S.C.

(excluding “vagrants”); Act of March 3, 1903, § 26; 32 Stat. 1213,

1220 (authorizing bonds that promise, in consideration for

admission, that an alien will not become a public charge); Act of

February 20, 1907, § 26, 34 Stat. 898, 907.

§ 1601(5) (“a compelling government interest to enact

new rules … to assure that aliens be self-reliant”); 8

U.S.C. § 1601(2)(A) (“aliens … [should] not depend on

public resources to meet their needs”).

1999 INS actions

In 1999, the former Immigration and Naturalization Service (“INS”) issued a notice of proposed

rulemaking (“NPRM”) to define “public charge” for

INS purposes. Inadmissibility and Deportability on

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

1999). On the same day, in conjunction with that

NPRM, the INS also published an intra-agency

guidance memorandum as “field guidance.” Field

Guidance on Inadmissibility and Deportability on

Public Charge Grounds, 64 Fed. Reg. 28,689 (May 26,

1999) (the “1999 Field Guidance”). The INS never

completed the NPRM’s rulemaking to define “public

charge,” but the field guidance appears to have

remained in place until DHS issued its final rule. 84

Fed. Reg. at 41,292 (superseding 1999 Field

Guidance).

Although INS never finalized the parallel NPRM,

the Field Guidance remained extant as guidance.

Unlike the field guidance, the 2019 Rule underwent

the full notice-and-comment process under the

Administrative Procedure Act, 5 U.S.C. §§ 551-706

(“APA”), and, in doing so, expressly superseded the

1999 Field Guidance.

While the 1999 Field Guidance may have had a

longer-than-planned run as stand-alone guidance

(that is, as merely another agency guidance

memorandum), nothing about INS’s aborted 1999

rulemaking imbues the 1999 Field Guidance with

anything more—under the APA 3 —than an agency

guidance document published in the Federal Register.

2019 rulemaking

When viewed independently from INS’s aborted

1999 NPRM, the 1999 Field Guidance may qualify as

an “interpretative rule[], general statement[] of policy,

or rule[] of agency organization, procedure, or

practice” that the APA exempts from notice-andcomment requirements. 5 U.S.C. § 553(b)(A). Under

the circumstances, the rulemaking challenged here

expressly superseded—that is, nullified—the 1999

Field Guidance: “This final rule supersedes the 1999

Interim Field Guidance on Deportability and

Inadmissibility on Public Charge Grounds.” 84 Fed.

Reg. at 41,292. Since federal courts lack authority

under the APA to require any more of an agency when

it changes prior APA-exempt guidance, Perez v.

Mortg. Bankers Ass’n, 575 U.S. 92, 101-02 (2015), the

1999 Field Guidance has no ongoing relevance to this

matter.4 Strictly from an APA perspective, however,

Quite simply, an NPRM that never becomes a final rule is a

nullity. NRDC v. Abraham, 355 F.3d 179, 201 (2d Cir. 2004) (no

deference to agency actions that fail to complete the full noticeand-comment process applicable to the relevant rulemaking

context); Tedori v. United States, 211 F.3d 488, 492 n.13 (9th Cir.

2000) (“any notion of ascribing weight to anything that has

remained in the ‘proposed regulation’ limbo for a like period [of

13 years] is totally unpersuasive”); Matter of Appletree Markets,

Inc., 19 F.3d 969, 973 (5th Cir. 1994); Utah Wilderness Alliance

v. Dabney, 222 F.3d 819, 829 (10th Cir. 2000).

Congress did not ratify the 1999 Field Guidance because

Congress did not enact anything pertaining to public charge

admissibility since 1999: there is no Act from which to infer

congressional acquiescence. “It is impossible to assert with any

the 1999 Field Guidance is simply a superseded, subregulatory guidance document: a nullity.

Until 2015, it was arguably a hard case whether

an interpretive rule modifying a prior interpretive

rule required a rulemaking, even if the initial

interpretive rule did not. But see Perez, 575 U.S. at

101-02 (resolving that issue). By contrast, it is an easy

case when—as here—a final rulemaking superseded a

prior guidance document:

An initial agency interpretation is not

instantly carved in stone. On the contrary,

the agency, to engage in informed

rulemaking,

must

consider

varying

interpretations and the wisdom of its policy

on a continuing basis.

Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837,

863-64 (1984) (emphasis added). Indeed, Chevron was

a slightly harder case because the final rule

challenged there reversed a prior final rule. See 46

Fed. Reg. 50,766 (Oct. 14, 1981) (the discussion in the

Background section explains the final rule that the

Chevron agency changed). DHS had every right, then,

to change the 1999 Field Guidance.

Cook County litigation

The Cook County litigation entered a partial final

judgment against the regulatory part of the 2019 Rule

(that is, the new regulatory definition on the scope of

the “public charge” provision of the INA), but did not

degree of assurance that congressional failure to act represents

affirmative congressional approval[.]” Patterson v. McLean

Credit Union, 491 U.S. 164, 175 n.1 (1989) (interior quotation

marks omitted), abrogated in part on other grounds, PUB. L. NO.

102-166, §§ 101-102, 105 Stat. 1071, 1072-74 (1991).

address the 2019 Rule’s rescission of the 1999 Field

Guidance. See Cook Cty. v. Wolf, 498 F.Supp.3d 999,

1008-09 (N.D. Ill. 2020) (leaving consideration of the

1999 guidance to the remaining APA and equal

protection claims). The Texas parties’ intervention is

pending in the Seventh Circuit.

Factual Background

IRLI adopts the facts as stated by the Arizona

parties. See Pets.’ Br. at 4-15.

SUMMARY OF ARGUMENT

The Arizona parties’ intervention is not moot for

at least two independent reasons. First, the Texas

parties could succeed in undoing the Cook County

judgment, which would make the interim relief from

the Ninth Circuit a barrier that would harm the

Arizona parties. See Section I.A, infra. Second, even if

the Texas parties fail in their Cook County

intervention or on the merits, the Ninth Circuit’s

injunction is broader than the Cook County partial

judgment because the Ninth Circuit keeps the 1999

Field Guidance in place, but the Cook County court

did not vacate the rescission of that guidance.

Accordingly, the Ninth Circuit injunction still hinders

the Arizona parties, even if the regulatory portion of

the 2019 Rule remains vacated. See Section I.B, infra.

Even if the Arizona parties’ intervention were

moot, moreover, nothing would prevent this Court or

the Ninth Circuit on remand from vacating the

preliminary injunction and dismissing the underlying

case as an alternative to dismissing the intervention;

neither this Court’s precedents nor Article III impose

a jurisdictional hierarchy requiring dismissal of moot

cases over other jurisdictional or prudential grounds

for dismissal. See Section II.A, infra. Here, it is far

from clear that Plaintiffs have standing, see Section

II.B, infra, and the collusive nature of the federal

respondents’ scuttling their own appeals makes this

litigation a “friendly” lawsuit between the ostensible

plaintiffs and defendants that warrants prudential

dismissal. See Section II.C, infra.

Finally, aside from a perceived mootness, nothing

would preclude the Arizona parties’ intervention,

which they attempted as soon as the federal government ceased its heretofore successful appellate effort

to defend the 2019 Rule. See Section III, infra.

ARGUMENT

I. THIS ACTION IS NOT MOOT.

The test for mootness is rigorous: “A case becomes

moot only when it is impossible for a court to grant

any effectual relief whatever to the prevailing party.”

Knox v. SEIU, Local 1000, 567 U.S. 298, 307 (2012)

(internal quotation marks omitted, emphasis added).

As explained in this Section, relief remains available

to the Arizona parties vis-à-vis both the 2019 Rule and

the 1999 Field Guidance.

A. The challenge to the 2019 Rule could not

become moot while the Seventh Circuit

appeal is pending.

While the Texas intervention still could succeed in

vacating the partial final judgment in Cook County,

relief for the Arizona parties in this litigation is not

“impossible” under Knox. See Pets.’ Br. at 33-34.

Under those circumstances, this action is not moot.

Indeed, if this Court were to remand with instructions

to dismiss the underlying lawsuit as a “friendly suit,”

as outlined in Section II.C, infra, the result here might

control or guide the result in Cook County.

B. The challenge to the rescission of the

1999 Field Guidance is not moot.

Regardless of whether the Texas intervention in

Cook County succeeds, the issue of the Ninth Circuit’s

preliminary injunction to preserve operation of the

1999 INS Field Guidance remains a live issue. As the

Court explained in Cook County, the partial final

judgment there did not address whether the guidance

rescinded in the 2019 rulemaking would continue.

Cook Cty., 498 F.Supp.3d at 1008-09 (the plaintiffs’

unresolved “equal protection claim … could entail a

requirement that, until a new rule is promulgated,

DHS resume applying its 1999 field guidance”). For

its part, the Ninth Circuit’s preliminary injunction

provides that the field guidance continue in effect. See

City & Cty. of San Francisco v. United States

Citizenship & Immigration Servs., 408 F. Supp. 3d

1057, 1111-12 (N.D. Cal. 2019) (Pet. App. 263a-264a)

(Field Guidance is part of the preserved status quo);

Washington v. United States Dep’t of Homeland Sec.,

408 F. Supp. 3d 1191, 1215-16 (E.D. Wash. 2019)

(same) (Pet. App. 347a-3499a); City & Cty. of San

Francisco v. United States Citizenship & Immigration

Servs., 981 F.3d 742, 763 (9th Cir. 2020) (Pet. App.

88a) (affirming same in pertinent part). This ongoing

part of the original litigation continues, even if the

Texas intervention fails to save the underlying 2019

Rule.

Specifically, “[a]s long as the parties have a

concrete interest, however small, in the outcome of the

litigation, the case is not moot.” Campbell-Ewald Co.

v. Gomez, 577 U.S. 153, 161 (2016) (interior quotation

marks omitted). So even if the Cook County plaintiffs

prevail and keep their partial final judgment in place,

the Ninth Circuit injunction still provides something

against which the Arizona parties could prevail here

or on remand to the Ninth Circuit.

II. EVEN IF THIS ACTION WERE MOOT, THIS

COURT NEED NOT DISMISS ON

MOOTNESS GROUNDS.

If the respondents are correct that this action is

moot, that would preclude this Court’s reaching the

merits. Calderon v. Moore, 518 U.S. 149, 150 (1996)

(“Federal courts may not give opinions upon moot

questions or abstract propositions”) (internal quotation marks omitted). While mootness would preclude

deciding the merits, it would not mandate dismissal

for mootness if the Court had another basis on which

to dismiss.

All of these doctrines are important, and many of

them are interrelated:

“All of the doctrines that cluster about

Article III—not only standing but mootness, ripeness, political question, and the

like—relate in part, and in different though

overlapping ways, to an idea, which is more

than an intuition but less than a rigorous

and explicit theory, about the constitutional

and prudential limits to the powers of an

unelected, unrepresentative judiciary in

our kind of government.”

Allen v. Wright, 468 U.S. 737, 750 (1984) (quoting

Vander Jagt v. O’Neill, 699 F.2d 1166, 1178-79 (D.C.

Cir. 1983) (Bork, J., concurring)). Importantly, these

overlapping doctrines apply throughout the litigation:

“We have interpreted this requirement to demand

that an actual controversy be extant at all stages of

review, not merely at the time the complaint is filed.”

Arizonans for Official English v. Arizona, 520 U.S. 43,

67 (1997) (interior quotation marks and alterations

omitted). As explained in the next section, the Court

can choose among the bases on which to dismiss, and

this Court could dismiss because Plaintiffs lack

Article III standing or because the litigation has

become a “friendly lawsuit” that would justify

dismissal on prudential grounds.

A. There is no “unyielding jurisdictional

hierarchy” on the bases for dismissal.

Assuming arguendo that this action were moot,

this Court still would have some discretion on how to

resolve the matter: “there is no unyielding jurisdictional hierarchy” that requires dismissal for lack of

subject-matter jurisdiction before dismissing on

another threshold basis. Ruhrgas Ag v. Marathon Oil

Co., 526 U.S. 574, 578 (1999). “[J]urisdiction is vital

only if the court proposes to issue a judgment on the

merits.” Id. (interior quotation marks omitted); Steel

Co. v. Citizens for a Better Env’t, 523 U.S. 83, 100 n.3

(1998). On the question of how to dismiss the case, “a

federal court has leeway to choose among threshold

grounds for denying audience to a case on the merits.”

Sinochem Int’l Co. v. Malay. Int’l Shipping Corp., 549

U.S. 422, 431 (2007).

The decision on how to dismiss a case “is rooted in

equity.” Azar v. Garza, 138 S.Ct. 1790, 1792 (2018)

(discussing vacatur under United States v.

Munsingwear, Inc., 340 U.S. 36, 39 (1950)); see also

Munsingwear, 340 U.S. at 39 (citing United States v.

Hamburg-American Co., 239 U.S. 466, 478 (1916)).

Barring an exception to mootness, federal courts

cannot reach the merits of a moot case, but they

nonetheless must “determine[e] what will be ‘most

consonant to justice’ in view of the conditions and

circumstances of the particular case.” HamburgAmerican Co., 239 U.S. at 478 (quoting South Spring

Hill Gold Mining Co. v. Amador Medean Gold Mining

Co., 145 U.S. 300, 302 (1892)). Here, that may require

dismissing the plaintiffs’ underlying case, as opposed

to denying intervention.

Equity gives this Court broad flexibility in

choosing how to proceed here:

The essence of equity jurisdiction has been

the power of the Chancellor to do equity and

to mould each decree to the necessities of

the particular case. Flexibility rather than

rigidity has distinguished it.

Winter v. Natural Resources Defense Council, Inc.,,

555 U.S. 7, 51 (2008) (internal quotation marks

omitted). For example, in Bass v. Butler, 258 F.3d 176,

180 n.4 (3d Cir. 2001), then-Judge Alito would have

decided an issue of appellate jurisdiction, but his two

panel colleagues elected to decide the Article III issue

of mootness. Here, if the Arizona parties’ claims were

indeed moot—they are not—the Court nonetheless

could focus instead on the plaintiffs’ lack of Article III

standing. A court simply is not bound by a hierarchal

order in which to decide these jurisdictional issues.

In addition to alternate jurisdictional bases on

which to dismiss, the Court also can look to prudential

ones. Levin v. Commerce Energy, Inc., 560 U.S. 413,

432 (2010) (dismissing on comity grounds, which “is a

prudential doctrine”); cf. Cheng v. Boeing Co., 708

F.2d 1406, 1409 (9th Cir. 1983) (“doctrine of forum non

conveniens permits a court to decline to exercise its

jurisdiction for prudential reasons”). Even if the canon

against “friendly” or collusive litigation is not jurisdictional, therefore, the Court also could consider that

basis for dismissing this litigation.

B. The plaintiffs lack Article III standing.

The first alternate basis on which this Court could

dismiss this litigation is standing. Like any federal

appellate court, this Court has the duty to consider

not only its jurisdiction but also that of the lower

courts:

Every federal appellate court has a special

obligation to satisfy itself not only of its own

jurisdiction, but also that of the lower

courts in a cause under review, even though

the parties are prepared to concede it.

Steel Co., 523 U.S. at 95 (interior quotation marks

omitted). Here, the plaintiffs lack standing for at least

some of the claims. Moreover, the party asserting a

claim bears the burden of proof on it, Kokkonen v.

Guardian Life Ins. Co. of Am., 511 U.S. 375, 377

(1994); Renne v. Geary, 501 U.S. 312, 316 (1991) (court

“presume[s] that federal courts lack jurisdiction

unless the contrary appears affirmatively from the

record”), and the parties cannot confer jurisdiction by

consent or waiver. Insurance Corp. of Ireland v.

Compagnie des Bauxites de Guinee, 456 U.S. 694, 702

(1982). Under the circumstances here, it is unclear

that Plaintiffs ever had standing for interim relief.

1. The Ninth Circuit improperly relied

on plaintiffs’ pleadings to support

interim relief.

Plaintiffs must demonstrate standing “with the

manner and degree of evidence required at the

successive stages of the litigation.” Lujan v. Defenders

of Wildlife, 504 U.S. 555, 561 (1992). Even in opposing

motions to dismiss, plaintiffs must establish nonobvious harm with evidence, Va. House of Delegates v.

Bethune-Hill, 139 S.Ct. 1945, 1955 (2019) (party

asserting federal jurisdiction “bears the burden of

doing more than simply alleging a nonobvious harm”)

(interior quotation marks omitted), but the standard

for a preliminary injunction requires actual evidence.

City of Los Angeles v. Lyons, 461 U.S. 95, 104-05

(1983) (discussing the existence of “a case or

controversy … that would justify the equitable relief”);

Lujan v. Nat’l Wildlife Fed’n, 497 U.S. 871, 907 n.8

(1990); Speech First, Inc. v. Killeen, 968 F.3d 628, 638

(7th Cir. 2020) (requiring “affidavit or other evidence

specific facts, rather than “general factual allegations

of injury”) (internal quotation marks omitted) (citing

Nat’l Wildlife Fed’n); Cacchillo v. Insmed, Inc., 638

F.3d 401, 404 (2d Cir. 2011) (same). While Plaintiffs

filed affidavits in district court, the Ninth Circuit

affirmed without distinguishing between Plaintiffs’

allegations and their evidence, Pet. App. 119a, based

on a Ninth Circuit precedent that improperly allows

interim relief based only on allegations. Id.;

Washington v. Trump, 847 F.3d 1151, 1159 (9th Cir.

2017) (“At this very preliminary stage of the litigation,

the States may rely on the allegations in their

Complaint and whatever other evidence they

submitted in support of their TRO motion to meet

their burden.”). This Court should vacate the finding

of standing for interim relief as based on insufficient

evidence.

2. The state and local plaintiffs lack

parens patriae standing against the

federal government.

State and local governments cannot assert parens

patriae standing against the federal government.

Alfred L. Snapp & Son v. Puerto Rico, 458 U.S. 592,

610 n.16 (1982). Harms to third parties, then, cannot

form any part of the state and local plaintiffs’

standing.

3. The funding injuries are selfinflicted and speculative.

The state and local plaintiffs claim injury from a

reduction in Medicaid reimbursement, Pet. App. 68a,

but this claim fails because the harm is self-inflicted

and too speculative for Article III.

Not every pecuniary loss or exchange qualifies as

an Article III injury in fact: “To support standing, an

injury must be legally and judicially cognizable.”

Bethune-Hill, 139 S.Ct. at 1953. Where it applies,

Medicaid reimburses a portion of the costs incurred,

42 U.S.C. § 1396b(a)(1), but the states would save

money—and get less of a partial refund—under the

2019 Rule. On balance, the states would be better off

financially. To the extent that they choose to cover

healthcare that they need not cover, the injury would

be a self-inflicted one, which would not suffice for

standing. Pennsylvania v. New Jersey, 426 U.S. 660,

664 (1976). While Plaintiffs may—or may not—be out

some money, their alleged injury is not cognizable.

4. Plaintiffs’ injuries fall outside the

zone of interests.

To satisfy the zone-of-interests test, a “plaintiff

must establish that the injury he complains of (his

aggrievement, or the adverse effect upon him) falls

within the ‘zone of interests’ sought to be protected by

the statutory provision whose violation forms the

legal basis for his complaint.” Air Courier Conference

v. Am. Postal Workers Union, 498 U.S. 517, 523-24

(1991) (interior quotation marks omitted, emphasis in

original). If a claim would “frustrate [rather] than …

further [the] statutory objectives,” that plaintiff would

be an unreliable litigant to pursue the objectives.

Clarke v. Sec. Indus. Ass’n, 479 U.S. 388, 397 n.12

(1987) (“concern that the plaintiff be ‘reliable’ carries

over to the ‘zone of interest’ inquiry, which seeks to

exclude those plaintiffs whose suits are more likely to

frustrate than to further statutory objectives”); Nat’l

Wildlife Fed’n, 497 U.S. at 883 (not all direct

pecuniary interests satisfy zone-of-interests test).

Plaintiffs’ various interests do not meet the test.

The history of the public-charge restriction on

immigration reflects a desire that immigrants be selfsufficient members of their communities. To deem the

expenditures that private or public third parties incur

voluntarily is antithetical to the INA, which makes it

“national policy with respect to welfare and

immigration” that “the availability of public benefits

not constitute an incentive for immigration to the

United States,” 8 U.S.C. § 1601(2)(B), and recognizes

“a compelling government interest to enact new rules

for eligibility and sponsorship agreements in order to

assure that aliens be self-reliant in accordance with

national immigration policy,” id. § 1601(5), and “to

remove the incentive for illegal immigration provided

by the availability of public benefits.” Id. § 1601(6).

Under these circumstances, the plaintiffs’ interests

frustrate the statutory concern with self-sufficiency.5

5. Plaintiffs’ injuries are insufficient

for an action in equity.

In addition, Plaintiffs lack sufficient injury for a

suit in equity. To sue in equity, Plaintiffs need more

than an injury that would—or at least could—suffice

to confer standing under the APA. Instead, an equity

plaintiff or petitioner must invoke a statutory or

constitutional right for equity to enforce, such as life,

liberty, or property under the Due Process Clause or

equal protection under the Equal Protection Clause or

its federal equivalent in the Fifth Amendment. See,

e.g., United States v. Lee, 106 U.S. 196, 220-21 (1882)

(property); Ex parte Young, 209 U.S. 123, 149 (1908)

(property); Youngberg v. Romeo, 457 U.S. 307, 316

(1982) (liberty); cf. Wadley S. R. Co. v. Georgia, 235

U.S. 651, 661 (1915) (“any party affected by

[government] action is entitled, by the due process

clause, to a judicial review of the question as to

whether he has been thereby deprived of a right

protected by the Constitution”). Plaintiffs’ claimed

injuries here fall short of what equity requires.

Unlike with APA review and this Court’s liberal

modern interpretation of Article III, pre-APA equity

If Plaintiffs fall outside the INA’s zone of interests, they also

lack an APA cause of action. 5 U.S.C. § 702; Ass’n of Data

Processing Serv. Orgs., Inc. v. Camp, 397 U.S. 150, 153-54 (1970)

(zone-of-interests test applies to APA).

review requires “direct injury,” which means “a wrong

which directly results in the violation of a legal right.”

Alabama Power Co. v. Ickes, 302 U.S. 464, 479 (1938).

Without that elevated level of direct injury, there is no

review:

It is an ancient maxim, that a damage to

one, without an injury in this sense,

(damnum absque injuria), does not lay the

foundation of an action; because, if the act

complained of does not violate any of his

legal rights, it is obvious, that he has no

cause to complain. Want of right and want

of remedy are justly said to be reciprocal.

Where therefore there has been a violation

of a right, the person injured is entitled to

an action. The converse is equally true, that

where, although there is damage, there is

no violation of a right no action can be

maintained.

Id. (alterations, citations, and interior quotation

marks omitted). In short, Plaintiffs lack sufficient

injury to bring an action in equity, assuming arguendo

they lack an APA action under the zone-of-interest

test.

C. The federal respondents’ norm-breaking

conduct warrants dismissal as a friendly

lawsuit.

The second alternate basis on which this Court

could dismiss this litigation is the “friendly” nature of

the suit between the plaintiffs and the federal

parties. 6 As the Arizona parties make clear, the

federal respondents scuttled successful appeals in

support of the 2019 Rule. See Pets.’ Br. at 8; Dep’t of

Homeland Sec. v. New York, 140 S.Ct. 599 (2020) (stay

in favor of 2019 Rule); Wolf v. Cook County, 140 S.Ct.

681 (2020) (same). As this Court’s stays made clear,

the federal respondents were likely to prevail on their

defense of the 2019 Rule. Hollingsworth v. Perry, 558

U.S. 183, 190 (2010). While the federal respondents

potentially could have asked the various courts—

including this Court—to stay those appeals to allow a

new rulemaking, simply dismissing the appeals and

avoiding a rulemaking is norm-breaking behavior, see

Pets.’ Br. at 9-13, which this Court should view “with

a critical eye.” Knox, 567 U.S. at 307 (“post-certiorari

maneuvers designed to insulate a decision from

review by this Court must be viewed with a critical

eye”). Certainly, the Court ought not reward that type

of behavior.

For both prudential and jurisdictional reasons,

federal courts should—and often must—dismiss a

case when the ostensibly opposing parties want the

same result. Generally, “there is no Art. III case or

controversy when the parties desire precisely the

same result.” GTE Sylvania, Inc. v. Consumers Union

of the United States, Inc., 445 U.S. 375, 383 (1980)

(interior quotations omitted); Moore v. CharlotteMecklenburg Bd. of Educ., 402 U.S. 47, 47-48 (1971)

(“[t]here is … no case or controversy within the

meaning of Art. III” if when the opposing parties agree

Dismissal under this Court’s friendly-lawsuit precedents

would be similar in rationale to the “Munsingwear vacatur”

proposed in dissent by Judge VanDyke. Pet. App. 35a-40a.

on an outcome). But even when the parties’ agreement

does not eliminate an Article III case or controversy,

federal courts still must weigh the prudential aspects

of entertaining the suit, lest federal courts become

complicit in collusive efforts to bypass the political

process or APA rulemaking through the vehicle of a

friendly lawsuit.

Specifically, federal courts should recognize that

the need for actual adversity prudentially limits the

suits that they should entertain. Rescue Army v.

Municipal Court of City of Los Angeles, 331 U.S. 549,

568 (1947); New York City Transit Authority v. Beazer,

440 U.S. 568, 583 (1979). “It never was the thought

that, by means of a friendly suit, a party beaten in the

legislature could transfer to the courts an inquiry as

to the constitutionality of the legislative act.” Chicago

& G.T. Ry. Co. v. Wellman, 143 U.S. 339, 344-45

(1892). Under this prudential analysis, this Court

could remand with instructions to dismiss the suit on

prudential grounds to ensure that respondents do not

use the federal courts to subvert the proper APA

procedure for rescinding the 2019 Rule.

Of course, when a plaintiff raises a valid claim

that government defendants must concede, the

prudential rationale for dismissal can give way to

allow resolving a substantial federal claim. For

example, in United States v. Windsor, 570 U.S. 744,

755-63 (2013), the government defendant adopted the

plaintiff’s merits views, but continued to enforce the

challenged law pending the litigation’s final

resolution:

The decision of the Executive not to defend

the constitutionality of [the challenged law]

in court while continuing to deny refunds

and to assess deficiencies does introduce a

complication. Even though the Executive’s

current position was announced before the

District Court entered its judgment, the

Government’s agreement with Windsor’s

position would not have deprived the

District Court of jurisdiction to entertain

and resolve the refund suit; for her injury

(failure to obtain a refund allegedly

required by law) was concrete, persisting,

and unredressed. The Government’s

position—agreeing with Windsor’s legal

contention but refusing to give it effect—

meant that there was a justiciable

controversy between the parties, despite

what the claimant would find to be an

inconsistency in that stance.

Windsor, 570 U.S. at 756. If the federal respondents

and their now-allies from the other side had wanted

to resolve this in court, the Department of Justice and

the Office of Solicitor General could have done so. This

Court could remand with instructions to dismiss on

prudential grounds.

III. UNDER THE CIRCUMSTANCES, DENYING

INTERVENTION WAS UNTENABLE.

For post-judgment interventions, the issue is one

of timing: “The critical inquiry in every such case is

whether in view of all the circumstances the intervenor acted promptly after the entry of final judgment.” United Airlines, Inc. v. McDonald, 432 U.S.

385, 395-96 (1977). As the Arizona parties explain, see

Pets.’ Br. at 22-23, they expeditiously moved to intervene once the federal government stopped defending

the 2019 Rule.7

Given that “this Court reviews judgments, not

opinions,” Chevron, 467 U.S. at 842, the brevity of the

Ninth Circuit opinion is no obstacle: “The Motion to

Intervene by the States of Arizona, et al., is

DENIED.” Pet. App. at 13 (emphasis in original). The

Arizona parties have met all the criteria for

intervening, whether to vacate the injunction and to

dismiss the litigation or to litigate the merits on

remand. Certainly, the Ninth Circuit gave no reason

to deny intervention.

CONCLUSION

The Court should reverse the Ninth Circuit’s

denial of the Arizona motion to intervene and either

(a) remand with instructions to dismiss the various

cases for lack of Article III standing or on prudential

grounds as a friendly lawsuit; or (b) remand to allow

the parties to brief the issues presented, to wit: (i) if

the Texas intervention fails, vacatur for mootness and

the merits with respect to the 1999 Field Guidance, or

(ii) if the Texas intervention succeeds, the merits

generally.

If the Court remands for further proceedings, the

Court also should stay the preliminary injunction for

the same reason that the Court granted stays in the

The Arizona parties explain why they meet the criteria for

intervention as of right and permissive intervention. Pets.’ Br. at

18-29. Amicus IRLI concurs with their analysis and so focuses

only on the issue of mootness and jurisdiction.

federal government’s stay applications. Dep’t of Homeland Sec. v. New York, 140 S.Ct. at 599; Wolf v. Cook

County, 140 S.Ct. at 681.

December 20, 2021

Respectfully submitted,