     Case: 15-40333   Document: 00513264639     Page: 1   Date Filed: 11/09/2015




        IN THE UNITED STATES COURT OF APPEALS
                 FOR THE FIFTH CIRCUIT    United States Court of Appeals
                                                   Fifth Circuit

                                                                       FILED
                                                                  November 9, 2015
                                 No. 15-40333
                                                                    Lyle W. Cayce
                                                                         Clerk
STATE OF TEXAS; STATE OF ALABAMA; STATE OF GEORGIA; STATE
OF IDAHO; STATE OF INDIANA; ET AL.,

             Plaintiffs – Appellees,

v.

UNITED STATES OF AMERICA; JEH CHARLES JOHNSON, Secretary,
Department of Homeland Security; R. GIL KERLIKOWSKE, Commissioner
of U.S. Customs and Border Protection; RONALD D. VITIELLO, Deputy
Chief of U.S. Border Patrol, U.S. Customs and Border of Protection; SARAH
R. SALDANA, Director of U.S. Immigration and Customs Enforcement;
LEON RODRIGUEZ,

             Defendants – Appellees,

v.

JANE DOE #1; JANE DOE #2; JANE DOE #3,

             Movants – Appellants.




                Appeal from the United States District Court
                     for the Southern District of Texas


Before KING, SMITH, and ELROD, Circuit Judges.
JENNIFER WALKER ELROD, Circuit Judge:
      Three Jane Does appeal from the denial of their motion to intervene in
State of Texas v. United States, No. 15-40238. Because the Jane Does satisfy
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                                        No. 15-40333
the requirements for intervention by right under Federal Rule of Civil
Procedure 24(a)(2), we REVERSE the district court’s order denying
intervention to the Jane Does and REMAND the case to the district court.
                                               I.
       In Texas v. United States, No. 15-40238, twenty-six states seek injunctive
relief against the United States and several officials of the Department of
Homeland Security to prevent them from implementing a program entitled
“Deferred Action for Parents of Americans and Lawful Permanent Residents”
(DAPA). 1 The program is outlined in a memorandum issued in November 2014
by Department of Homeland Security Secretary Jeh Johnson (DAPA
Memorandum). 2 If DAPA is implemented, certain aliens would become eligible
for grants of “deferred action,” which would “mean that, for a specified period
of time, [those aliens would be] permitted to be lawfully present in the United
States.” Texas v. United States, 787 F.3d 733, 744 (5th Cir. 2015) (alterations,



       1 We refer to the plaintiffs in the Texas case as “the States” and refer to the defendants
as “the Government.”
        2 See Memorandum from Jeh Johnson, Sec’y, Dep’t of Homeland Sec., to Leon

Rodriguez, Dir., U.S. Citizenship and Immigration Servs., et al. (Nov. 20, 2014), available at
http://www.dhs.gov/sites/default/files/publications/14_1120_memo_deferred_action.pdf. The
DAPA Memorandum directs USCIS to “exercis[e] prosecutorial discretion through the use of
deferred action, on a case-by-case basis, to those individuals who:
        • have, on the date of this memorandum, a son or daughter who is a U.S.
           citizen or lawful permanent resident;
        • have continuously resided in the United States since before January 1,
           2010;
        • are physically present in the United States on the date of this
           memorandum, and at the time of making a request for consideration of
           deferred action with USCIS;
        • have no lawful status on the date of this memorandum;
        • are not an enforcement priority as reflected in the November 20, 2014
           Policies for the Apprehension, Detention and Removal of Undocumented
           Immigrants Memorandum; and
        • present no other factors that, in the exercise of discretion, makes the grant
           of deferred action inappropriate.”

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emphasis, and internal quotation marks omitted).
      Three Jane Does sought to intervene as defendants in the Texas case.
The Jane Does are aliens who have lived in the United States for more than
ten years, currently live in the Rio Grande Valley, and have minor children
who are United States citizens. Thus, all three Jane Does satisfy the first four
criteria set forth in the DAPA Memorandum. In addition, all three Jane Does
believe that they satisfy the final two DAPA criteria because they are not
“enforcement priorities” and because they “present no other factors that, in the
exercise of discretion, make[] the grant of deferred action inappropriate.”
Accordingly, the Jane Does believe they are likely to receive grants of deferred
action if DAPA goes into effect.
      The States and the Government both opposed intervention in the district
court. The district court denied the Jane Does’ motion to intervene, stating
that the Jane Does’ “interests are adequately represented by the United
States” and that “this matter [is] time sensitive and the addition of new parties
will cause undue delay and prejudice.” Shortly thereafter, the district court
preliminarily enjoined implementation of DAPA.              The Jane Does timely
appealed the denial of their motion to intervene. Although the Jane Does
argued in the district court that they were entitled both to intervention by right
and to permissive intervention, on appeal they argue only that they are
entitled to intervention by right.
                                       II.
      “A ruling denying intervention of right is reviewed de novo.” Edwards v.
City of Houston, 78 F.3d 983, 995 (5th Cir. 1996) (en banc). “Although the
movant bears the burden of establishing its right to intervene, Rule 24 is to be
liberally construed.” Brumfield v. Dodd, 749 F.3d 339, 341 (5th Cir. 2014)
(citing 6 James W. Moore, et al., Moore’s Federal Practice § 24.03[1][a] (3d ed.
2008) [Moore’s]). “Federal courts should allow intervention where no one would
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                                 No. 15-40333
be hurt and the greater justice could be attained.” Sierra Club v. Espy, 18 F.3d
1202, 1205 (5th Cir. 1994) (internal quotation marks omitted).           For the
purposes of deciding the motion to intervene, we accept the Jane Does’ factual
allegations as true. Mendenhall v. M/V Toyota Maru No. 11, 551 F.2d 55, 57
(5th Cir. 1977).
                                      III.
      Intervention by right is governed by Federal Rule of Civil Procedure
24(a). To intervene by right, the prospective intervenor either must be “given
an unconditional right to intervene by a federal statute,” Fed. R. Civ. P.
24(a)(1), or must meet each of the four requirements of Rule 24(a)(2):
      (1) the application for intervention must be timely; (2) the
      applicant must have an interest relating to the property or
      transaction which is the subject of the action; (3) the applicant
      must be so situated that the disposition of the action may, as a
      practical matter, impair or impede his ability to protect that
      interest; (4) the applicant’s interest must be inadequately
      represented by the existing parties to the suit.

New Orleans Pub. Serv., Inc. v. United Gas Pipe Line Co., 732 F.2d 452, 463
(5th Cir. 1984) [NOPSI] (en banc) (internal quotation marks omitted). The
Jane Does claim that they satisfy each of the four requirements of Rule
24(a)(2).   The States and the Government concede the first and third
requirements, but argue that the Jane Does do not satisfy the “interest”
requirement or the “inadequate representation” requirement. We will address
each of these two disputed requirements in turn.
                                       A.
      The Jane Does satisfy the “interest” requirement of Rule 24(a)(2), which
requires that intervenors “claim[] an interest relating to the property or
transaction that is the subject of the action.” Fed. R. Civ. P. 24(a)(2). The
“property or transaction that is the subject of the action” in this case is DAPA,

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                                        No. 15-40333
so the legal question is whether the Jane Does have an “interest” relating to
DAPA. Although “[t]here is not any clear definition of the nature of the interest
. . . that is required for intervention of right,” 7C Charles Alan Wright, et al.,
Federal Practice and Procedure § 1908.1 (3d ed. 2007) [Wright & Miller]
(internal quotation marks omitted), we previously have interpreted Rule
24(a)(2) to require a “‘direct, substantial, legally protectable interest in the
proceedings,’” Edwards, 78 F.3d at 1004 (quoting NOPSI, 732 F.2d at 463).
       Although “this gloss on the rule” may not “provide any more guidance
than does the bare term ‘interest’ used in Rule 24 itself,” Wright & Miller
§ 1908.1, our cases reveal that the inquiry turns on whether the intervenor has
a stake in the matter that goes beyond a generalized preference that the case
come out a certain way. So, an intervenor fails to show a sufficient interest
when he seeks to intervene solely for ideological, economic, or precedential
reasons; that would-be intervenor merely prefers one outcome to the other. 3
For example, in NOPSI, a private utility company filed suit against a seller of
natural gas in a contractual dispute concerning fuel prices. 732 F.2d at 454–
55. Officials from the city of New Orleans attempted to intervene on the
ground that the electricity rates paid by the city would increase if the fuel-
pricing dispute was decided against the utility company. Id. at 460–61. Sitting
en banc, we held that the officials’ generalized, “purely economic interest” was



       3 See Pub. Serv. Co. of N.H. v. Patch, 136 F.3d 197, 205 (1st Cir. 1998) (“It is settled
beyond peradventure, however, that an undifferentiated, generalized interest in the outcome
of an ongoing action is too porous a foundation on which to premise intervention as of right.”);
Kleissler v. U.S. Forest Serv., 157 F.3d 964, 972 (3d Cir. 1998) (“[I]ntervenors should have an
interest that is specific to them, is capable of definition, and will be directly affected in a
substantially concrete fashion by the relief sought.”); Security Ins. Co. v. Schipporeit, Inc., 69
F.3d 1377, 1380–81 (7th Cir. 1995) (“It is something more than a mere ‘betting’ interest, but
less than a property right.” (citations omitted)); David L. Shapiro, Some Thoughts on
Intervention Before Courts, Agencies, and Arbitrators, 81 Harv. L. Rev. 721, 729 (1968) (“This
language indicates that one must have more of a stake in the proceeding than simply a
concern with the general precedent value of the decision in wholly unrelated litigation . . . .”).
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                                 No. 15-40333
insufficient to justify intervention. Id. at 466. “After all, every electricity
consumer . . . and every person who does business with any electricity
consumer yearns for lower electric rates.” Pub. Serv. Co. of N.H. v. Patch, 136
F.3d 197, 205 (1st Cir. 1998). Similarly, a Sixth Circuit panel determined that
an advocacy organization opposing abortion was not entitled to intervene in an
action challenging the constitutionality of Michigan’s Legal Birth Definition
Act because the organization had “only an ideological interest in the litigation,
and the lawsuit does not involve the regulation of [the organization’s] conduct
in any respect.” Northland Family Planning Clinic, Inc. v. Cox, 487 F.3d 323,
343 (6th Cir. 2007).
      On the other hand, an interest that is concrete, personalized, and legally
protectable is sufficient to support intervention.     A property interest, for
example, is “the most elementary type of right that Rule 24(a) is designed to
protect,” Diaz v. S. Drilling Corp., 427 F.2d 1118, 1124 (5th Cir. 1970), because
it is concrete, specific to the person possessing the right, and legally
protectable. See Moore’s § 24.03[2][a] (“Motions to intervene in which the
proposed intervenor advances a clear property interest present the easiest
cases for intervention.”). Accordingly, in Diaz, we permitted intervention by
the government when it sought to assert a lien on a fund before the court. 427
F.2d at 1124.     Likewise, in Espy, we held that two trade associations
representing timber purchasers met the “interest” requirement of Rule 24(a)(2)
because the timber purchasers had “property interests in existing timber
contracts that are threatened by the [litigation].” 18 F.3d at 1207.
      Although property interests are almost always adequate, they are not
the only types of interests that can support intervention under Rule 24(a)(2).
Indeed, we have disclaimed the notion “that a person must possess a pecuniary
or property interest to satisfy the requirement of Rule 24(a)(2).” Mothersill
D.I.S.C. Corp. v. Petroleos Mexicanos, S.A., 831 F.2d 59, 62 (5th Cir. 1987); see
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also Moore’s § 24.03[2][b] (“Rule 24 does not require that the intervenor prove
a property right . . . .”).      Non-property interests are sufficient to support
intervention when, like property interests, they are concrete, personalized, and
legally protectable. For example, in League of United Latin American Citizens,
District 19 v. City of Boerne, 659 F.3d 421 (5th Cir. 2011), we held that an
intervenor had a “legally protectable interest” where he sought to protect “his
right to vote in elections to choose all five city council members.” Id. at 434.
The intervenor was not seeking to protect a property interest, but his interest
in vindicating his own personal right to vote was sufficiently concrete and
specific to support intervention. Similarly, in City of Houston v. American
Traffic Solutions, Inc., 668 F.3d 291 (5th Cir. 2012), we reversed the district
court’s denial of intervention by petition organizers who “engineered the drive
that led to a city charter amendment over the nearly unanimous, well funded,
and longstanding opposition of the Mayor and City Council.”                     Id. at 294.
Although the intervenors had no property interest in the continued vitality of
the amendment, we held that the intervenors’ specific and “unique” interest
“in cementing their electoral victory and defending the charter amendment
itself” satisfied Rule 24(a)(2). Id.
       Moreover, although an asserted interest must be “legally protectable,” it
need not be legally enforceable. In other words, an interest is sufficient if it is
of the type that the law deems worthy of protection, even if the intervenor does
not have an enforceable legal entitlement or would not have standing to pursue
her own claim. 4 For example, in Trbovich v. United Mine Workers of America,
404 U.S. 528, 537 (1972), the Supreme Court held that a union member was



       4 See Shapiro, supra, at 726 (“A may not have a dispute with C that could qualify as
a case or controversy, but he may have a sufficient interest in B’s dispute with C to warrant
his participation in the case once it has begun, and the case or controversy limitation should
impose no barrier to his admission.” (footnote omitted)).
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                                  No. 15-40333
entitled to intervene by right in a suit brought by the Secretary of Labor to
invalidate an election of union officers, even though federal law prohibited the
union member from initiating his own suit. Another example is Black Fire
Fighters Ass’n of Dallas v. City of Dallas, 19 F.3d 992, 994 (5th Cir. 1994), in
which the city of Dallas entered into a consent decree with an employee group,
agreeing to give a specified number of promotions to black officers who would
not otherwise be chosen for promotions. A group of non-black firefighters
sought to intervene, claiming that the decree interfered with their own
promotion opportunities. Even though the non-black fire fighters did not have
legally enforceable rights to promotions, we held that they satisfied Rule
24(a)(2) because “[a] decree’s prospective interference with promotion
opportunities can justify intervention.” Id. (emphasis added).
      Edwards is similar. In that case, a police department entered into a
consent decree with black and Hispanic officers, and a group of other officers
sought to intervene. 78 F.3d at 989. The putative intervenors claimed that
the decree “adversely affects the[ir] interests . . . in having equal access to a
promotion system and promotion opportunities within the HPD for the ranks
of Sergeant and Lieutenant without reference to race, color, or national origin.”
Id. at 1004.    Sitting en banc, we reversed the district court’s denial of
intervention, explaining that a “‘vested interest in one of the . . . target
promotions is not required. Intervenor-appellants claim they are ineligible for
these promotions solely on account of race . . . . We hold this is sufficient to
confer standing to intervene.’” Id. (first alteration in original) (quoting Howard
v. McLucas, 782 F.2d 956, 959 (11th Cir. 1986)). Although the non-black, non-
Hispanic officers were not legally entitled to any promotions, their interest in
being considered for a promotion was sufficient to support intervention.
      More recently, in Brumfield, parents whose children received school
vouchers via Louisiana’s Scholarship Program sought to intervene in litigation
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                                  No. 15-40333
between Louisiana and the federal government over the state’s voucher
program. 749 F.3d at 340. The United States initially sought to enjoin the
voucher program on the ground that it violated a prior desegregation order.
By the time the case reached us on appeal, however, the United States only
sought “a process under which the State would provide the information needed
to assess and monitor the voucher program’s implementation . . . on a regular
and timely basis.” Id. at 341 (internal quotation marks omitted). The United
States opposed the parents’ intervention, arguing that the parents did not have
a legally protectable interest in this monitoring process. We ruled in favor of
the parents, holding that the parents had an interest justifying intervention:
“Here, a potential decree . . . threatens a prospective interference with
educational opportunities.”     749 F.3d at 343 (internal quotation marks
omitted). Even though it was uncertain whether the parents’ interests would
be affected at all, and even though the parents’ interest in the continuance of
the voucher program likely was not an enforceable legal right, the parents’
interest was sufficient to support intervention.
      Like the intervenors in Trbovich, Black Fire Fighters, Edwards, and
Brumfield, the Jane Does have interests sufficient to support intervention.
First, they have an interest in receiving deferred action under DAPA so that
they may legally remain in the United States. This is not a mere generalized
interest in the implementation of DAPA; rather, the Jane Does are the
intended beneficiaries of the challenged federal policy. Cf. Cal. ex rel. Lockyer
v. United States, 450 F.3d 436, 441 (9th Cir. 2006) (“[The proposed intervenors]
are the intended beneficiaries of this law . . . . The proposed intervenors’
interest thus is neither ‘undifferentiated’ nor ‘generalized.’” (internal quotation
marks omitted)). The Jane Does themselves will or will not be eligible for
deferred action, depending on the outcome of this case (assuming, as we must,
that their factual allegations are true). Thus, although the Jane Does do not
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                                  No. 15-40333
have a legal entitlement to deferred action, their interest in avoiding
deportation is a concrete, personalized interest that is legally protected by the
Due Process Clause of the Fifth Amendment. See Reno v. Flores, 507 U.S. 292,
306 (1993) (“It is well established that the Fifth Amendment entitles aliens to
due process of law in deportation proceedings.”).
      Second, the Jane Does have an interest in the employment opportunities
that would be available to them if they are granted deferred action and
employment authorization, the former of which would make them eligible for
the latter. These are the same types of interests that we deemed sufficient for
intervention in Black Fire Fighters and Edwards—as in those cases, the
intervenors do not have a legal entitlement to particular jobs, but their interest
in having access to job opportunities is sufficiently concrete and personalized
to support intervention.
      Third, similar to the intervenors in Brumfield, the Jane Does have an
interest in directing the upbringing of their United States-citizen children.
This interest, which would be adversely affected if the Jane Does are deported,
is a legally protected liberty interest under the Due Process Clause. See Troxel
v. Granville, 530 U.S. 57, 66 (2000) (“[W]e have recognized the fundamental
right of parents to make decisions concerning the care, custody, and control of
their children.”). Just as the parents in Brumfield had “an interest relating to”
the Louisiana voucher program because of its impact on their children, the
Jane Does have “an interest relating to” DAPA because of its impact on their
own children.
      The Government argues that the Jane Does do not have a legally
protectable interest in deferred action because deferred action may be
terminated at any time at the Government’s discretion. But the Government
fails to explain why uncertainty at the back end is any different from
uncertainty at the front end. The intervenors in Black Fire Fighters and
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                                  No. 15-40333
Edwards had no guarantee that they would receive promotions in the first
place; the Jane Does have no guarantee that they will retain deferred action
after they receive it. We perceive no legal difference. Besides, the same sort
of revocability is present in nearly every case in which a government program
gives rise to the intervenors’ interest. In Brumfield, for example, the parents’
interest in the lawsuit would have evaporated if Louisiana had modified its
voucher program in a way that made the parents ineligible, or if the federal
government abandoned its efforts to enjoin the program. The possibility that
the parents’ interests would be eliminated by government action did not
prevent them from intervening.
      In short, the Jane Does have a real, concrete stake in the outcome of this
litigation—if DAPA is invalidated, the Jane Does will lose their opportunity to
obtain deferred action and their opportunity to obtain employment
authorization.    The Jane Does are not individuals seeking to defend a
governmental policy they support on ideological grounds; rather, they are the
intended beneficiaries of the program being challenged. Just as the parents in
Brumfield had a specific, concrete interest in their children’s education, and
just as the individuals in Edwards and Black Fire Fighters had a specific,
concrete interest in pursuing job opportunities, the Jane Does have interests
that are sufficiently concrete and specific to support their intervention by right.
                                        B.
      The Jane Does also satisfy the “inadequate representation” requirement
of Rule 24(a)(2), which requires the Jane Does to demonstrate that their
interests are inadequately represented by the existing parties. “The burden of
establishing inadequate representation is on the applicant for intervention.”
Edwards, 78 F.3d at 1005. However, the applicant “need not show that the
representation by existing parties will be, for certain, inadequate.” Moore’s
§ 24.03[4][a][i]. Instead, “the Rule is satisfied if the applicant shows that the
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representation of his interest ‘may be’ inadequate.” Trbovich, 404 U.S. at 538
n.10; see also Wright & Miller § 1909 (“[T]he rule is satisfied if there is a serious
possibility that the representation may be inadequate . . . .”).
        Although we have characterized the intervenor’s burden as “minimal,”
Edwards, 78 F.3d at 1005, “it cannot be treated as so minimal as to write the
requirement completely out of the rule,” Cajun Elec. Power Co-op., Inc. v. Gulf
States Utilities, Inc., 940 F.2d 117, 120 (5th Cir. 1991) (internal quotation
marks omitted); see Veasey v. Perry, 577 Fed. App’x 261, 263 (5th Cir. 2014)
(“[T]his requirement must have some teeth.”). Accordingly, “our jurisprudence
has created two presumptions of adequate representation” that intervenors
must overcome in appropriate cases.                   Edwards, 78 F.3d at 1005.          One
presumption arises when “the would-be intervenor has the same ultimate
objective as a party to the lawsuit.” Id. Another presumption arises “when the
putative representative is a governmental body or officer charged by law with
representing the interests of the [intervenor].” Id. If the “same ultimate
objective” presumption applies, “the applicant for intervention must show
adversity of interest, collusion, or nonfeasance on the part of the existing party
to overcome the presumption.”                 Id. 5     Similarly, if the government-
representative presumption applies, the intervenor must show “that its
interest is in fact different from that of the [governmental entity] and that the




       5Although we often have implied that “adversity of interest, collusion, or nonfeasance”
are the only three ways to demonstrate inadequacy of representation, commentators have
noted that “[t]he wide variety of cases that come to the courts make it unlikely that there are
three and only three circumstances that would make representation inadequate and suggest
that adequacy of representation is a very complex variable.” 7C Charles Alan Wright, et al.,
Federal Practice and Procedure § 1909 (3d ed. 2007); see also Daggett v. Comm’n on
Governmental Ethics & Election Practices, 172 F.3d 104, 111 (1st Cir. 1999) (explaining that
the court’s prior reference to “adversity of interest, collusion, or nonfeasance” was not
intended to create an exclusive list).
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interest will not be represented by [it].” Id. (alterations in original) (internal
quotation marks omitted).
      Assuming arguendo that one or both presumptions apply, the Jane Does
have rebutted the presumption(s) by showing adversity of interest between
themselves and the Government. In order to show adversity of interest, an
intervenor must demonstrate that its interests diverge from the putative
representative’s interests in a manner germane to the case. In Brumfield, for
example, Louisiana and the parents had the same objective in upholding the
state voucher program.       However, the parents demonstrated that their
interests diverged from the state’s in certain key respects: “The state has many
interests in this case—maintaining not only the [voucher program] but also its
relationship with the federal government and with the courts that have
continuing desegregation jurisdiction. The parents do not have the latter two
interests; their only concern is keeping their vouchers.” 749 F.3d at 346. In
addition, the parents took a legal position “significantly different from that of
the state”; whereas the state conceded that the district court had jurisdiction
over the voucher program because of a continuing desegregation order,
“the parents challenge[d] that notion,” arguing that the program did not
constitute state aid to private schools and thus was not subject to the
continuing desegregation order. Id. Accordingly, we held that “[t]he lack of
unity in all objectives, combined with real and legitimate additional or contrary
arguments, is sufficient to demonstrate that the representation may be
inadequate, so this requirement of Rule 24(a) is met.” Id.
      In contrast, in Hopwood v. Texas, we affirmed the denial of a motion to
intervene filed by the Thurgood Marshall Legal Society and Black Pre–Law
Association in a case challenging Texas’s affirmative action policy. 21 F.3d 603
(5th Cir. 1994). The intervenors argued, at a high level of generality, that “the
State’s interests are broader” than the intervenors’ interests because “the State
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must balance competing goals while [the intervenors] are sharply focused on
preserving the admissions policy.” Id. at 605. However, the intervenors did
not demonstrate how these allegedly divergent interests would have any
impact on the state’s defense of its affirmative action policy. Because the
intervenors did not connect the allegedly divergent interests with any concrete
effects on the litigation, we held that the the intervenors had not carried their
burden: “The proposed intervenors have not demonstrated that the State will
not strongly defend its affirmative action program. Nor have the proposed
intervenors shown that they have a separate defense of the affirmative action
plan that the State has failed to assert.” Id. at 606; see also Brumfield, 749
F.3d at 346 (“[A] private group does not always satisfy this prong just because
a governmental entity is on the same side of an issue . . . .”); Daggett v. Comm’n
on Governmental Ethics & Election Practices, 172 F.3d 104, 112 (1st Cir. 1999)
(“The general notion that the [government] represents ‘broader’ interests at
some abstract level is not enough.”).
      The Jane Does have carried their burden here. The Jane Does specify
the particular ways in which their interests diverge from the Government’s.
Although both the Government and the Jane Does seek to uphold DAPA, the
Government’s “interests are in securing an expansive interpretation of
executive authority, efficiently enforcing the immigration laws, and
maintaining its working relationship with the States, who often assist it in
detaining immigrants like the Jane Does.” In contrast, the Jane Does’ concerns
are “to remain in their long-time home state of Texas, to retain custody of their
U.S. citizen children, and to obtain work authorization, driver’s licenses, and
lawful employment so that they can provide for their families.” Cf. Trbovich,
404 U.S. at 538–39 (“[T]he Secretary has an obligation to protect the vital
public interest in assuring free and democratic union elections that transcends
the narrower interest of the complaining union member.”); Brumfield, 749 F.3d
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at 346 (although Louisiana and the federal government were directly adverse
in the case, Louisiana had a broader interest in maintaining “its relationship
with the federal government.”); Espy, 18 F.3d at 1207 (“The government must
represent the broad public interest, not just the economic concerns of the
timber industry.”).
       The Jane Does then identify the particular way in which these divergent
interests have impacted the litigation. In order to undermine the States’
standing argument, the Government has taken the position that the States
may refuse to issue driver’s licenses to deferred action recipients. This position
is directly adverse to the Jane Does, who are eligible for deferred action. The
disagreement between the Government and the Jane Does on the driver’s
license issue arises directly from their divergent interests; the Government has
an institutional interest in shielding its actions from state intervention
through the courts, whereas the Jane Does’ interest is in working and
providing for their families, for which a driver’s license is beneficial. 6 As in
Brumfield, “[t]he lack of unity in all objectives, combined with real and
legitimate additional or contrary arguments, is sufficient to demonstrate that
the representation may be inadequate, so this requirement of Rule 24(a) is
met.” 749 F.3d at 346.




       6  The States argue that the Jane Does have waived their position on the driver’s
license issue by incorporating the Government’s initial preliminary injunction opposition into
their own proposed opposition. However, the Government’s preliminary injunction
opposition did not argue (at least not explicitly) that the States were free to deny driver’s
licenses to deferred action recipients. The Government did not explicitly take that position
until its sur-reply brief, which the Jane Does did not incorporate. Indeed, after the
Government filed its sur-reply, the States filed a letter with the district court, contending
that “Defendants have yet again changed their position on driver’s licenses. Having
previously told the Ninth Circuit one thing and this Court another, Defendants now offer a
third position: States are free to deny driver’s licenses to DACA and DAPA recipients.”
Accordingly, the Jane Does have not waived their position that the States may not deny
driver’s licenses to deferred action recipients qua deferred action recipients.
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    Case: 15-40333   Document: 00513264639      Page: 16   Date Filed: 11/09/2015



                                 No. 15-40333
      The Jane Does also argue that the Government’s misconduct in the
district court has impaired the Government’s ability to adequately represent
the Jane Does’ interests.    The Jane Does point out that the Government
admitted to granting three-year periods of deferred action to approximately
100,000 individuals (after representing that it would not do so), issuing three-
year terms of deferred action and three-year employment authorization
documents to dozens of people after the district court enjoined DAPA, and
granting three-year employment authorization documents to an additional
2,000 individuals after the injunction issued. The district court described the
Government’s actions as “misleading” and as “unacceptable misconduct,” and
has held multiple hearings regarding the Government’s efforts to claw back
the improperly issued documents. As a result, according to the Jane Does, the
Government has lost its credibility with the district court and has been forced
to divert resources away from the litigation itself. The government responds
that it did not engage in any intentional misconduct and that, in any event,
the proceedings in the district court “do not bear on the government’s defense
of the legality of [DAPA].” Because we hold that the Jane Does have rebutted
the presumption of adequate representation by showing adversity of interest,
we need not opine on whether these developments in the district court have
impaired the Government’s ability to adequately represent the Jane Does’
interests.
                                      IV.
      For the foregoing reasons, the Jane Does are entitled to intervene by
right. REVERSED and REMANDED.




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