City and County of San Francisco; County of Santa Clara v. United States Citizenship

FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
C ITY AND C OUNTY OF S AN
FRANCISCO; C OUNTY OF S ANTA
C LARA,
Plaintiffs-Appellees,
v.
UNITED S TATES C ITIZENSHIP AND
IMMIGRATION S ERVICES , a federal
agency; U.S. DEPARTMENT OF
HOMELAND S ECURITY, a federal
agency; A LEJANDRO M AYORKAS , in
his official capacity as Secretary of
the U.S. Department of Homeland
Security; TRACY R ENAUD , in her
official capacity as Senior Official
Performing the Duties of the
Director, U.S. Citizenship and
Immigration Services,
Defendants-Appellants,
S TATES OF ARIZONA , ALABAMA ,
ARKANSAS , INDIANA , KANSAS ,
LOUISIANA, M ISSISSIPPI, M ISSOURI,
M ONTANA , OKLAHOMA, S OUTH
C AROLINA , TEXAS , AND WEST
VIRGINIA,
Intervenors-Pending.
No. 19-17213
D.C. No.
4:19-cv-04717-
PJH

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2 C ITY & C TY. OF S AN FRANCISCO V . USCIS
S TATE OF C ALIFORNIA; D ISTRICT OF
C OLUMBIA; S TATE OF M AINE;
C OMMONWEALTH OF
P ENNSYLVANIA ; S TATE OF OREGON,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND
S ECURITY, a federal agency; UNITED
S TATES C ITIZENSHIP AND
IMMIGRATION S ERVICES , a federal
agency; A LEJANDRO M AYORKAS , in
his official capacity as Secretary of
the U.S. Department of Homeland
Security; TRACY R ENAUD , in her
official capacity as Senior Official
Performing the Duties of the
Director, U.S. Citizenship and
Immigration Services,
Defendants-Appellants,
S TATES OF ARIZONA , ALABAMA ,
ARKANSAS , INDIANA , KANSAS ,
LOUISIANA, M ISSISSIPPI, M ISSOURI,
M ONTANA , OKLAHOMA, S OUTH
C AROLINA , TEXAS , AND WEST
VIRGINIA,
Intervenors-Pending.
No. 19-17214
D.C. No.
4:19-cv-04975-
PJH

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 3
S TATE OF WASHINGTON ;
C OMMONWEALTH OF V IRGINIA;
S TATE OF C OLORADO ; S TATE OF
DELAWARE; S TATE OF ILLINOIS ;
S TATE OF M ARYLAND ;
C OMMONWEALTH OF
M ASSACHUSETTS ; DANA NESSEL,
Attorney General on behalf of the
People of Michigan; S TATE OF
M INNESOTA; S TATE OF N EVADA ;
S TATE OF NEW J ERSEY; S TATE OF
NEW M EXICO; S TATE OF R HODE
ISLAND; S TATE OF HAWAII,
Plaintiffs-Appellees,
v.
U.S. DEPARTMENT OF HOMELAND
S ECURITY, a federal agency;
ALEJANDRO M AYORKAS , in his
official capacity as Secretary of the
U.S. Department of Homeland
Security; UNITED S TATES
C ITIZENSHIP AND IMMIGRATION
S ERVICES , a federal agency; TRACY
R ENAUD , in her official capacity as
Senior Official Performing the
Duties of the Director, U.S.
Citizenship and Immigration
Services,
Defendants-Appellants,
No. 19-35914
D.C. No.
4:19-cv-05210-
RMP
ORDER

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4 C ITY & C TY. OF S AN FRANCISCO V . USCIS
S TATES OF ARIZONA , ALABAMA ,
ARKANSAS , INDIANA , KANSAS ,
LOUISIANA, M ISSISSIPPI, M ISSOURI,
M ONTANA , OKLAHOMA, S OUTH
C AROLINA , TEXAS , AND WEST
VIRGINIA,
Intervenors-Pending.
Filed April 8, 2021
Before: Mary M. Schroeder, William A. Fletcher, and
Lawrence J. VanDyke, Circuit Judges.
Order;
Dissent by Judge VanDyke
SUMMARY*
Immigration/Intervention
The panel denied motions by the State of Arizona and
other states to intervene in cases in which the panel
previously issued an opinion in City and County of San
Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2020)
[Schroeder (author) W. Fletcher VanDyke (dissenting)],
affirming in part and vacating in part preliminary injunctions
enjoining implementation of the Department of Homeland
Security’s redefinition of the term “public charge,” and in
* This summary constitutes no part of the opinion of the court. It
has been prepared by court staff for the convenience of the reader.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 5
which the Supreme Court on March 9, 2021, dismissed
pending petitions for writ of certiorari pursuant to the
stipulation of the parties.
Judge VanDyke dissented from the denial of
intervention. Judge VanDyke wrote that with the recent
change in federal administrations, the Biden Administration
stopped defending certain rules promulgated by the Trump
Administration, including the Public Charge rule at issue in
this case. Judge VanDyke observed that this in itself is
neither surprising nor particularly unusual, as elections have
consequences, and new presidential administrations,
especially of a different party, often disagree with some of
the rules promulgated by their predecessors. But here, Judge
VanDyke wrote, the new administration did something quite
extraordinary with the Public Charge rule: in concert with
the various plaintiffs who had challenged the rule in federal
courts across the country, the federal defendants
simultaneously dismissed all the cases challenging the rule
(including cases pending before the Supreme Court),
acquiesced in a single judge’s nationwide vacatur of the rule,
leveraged that now-unopposed vacatur to immediately
remove the rule from the Federal Register, and quickly
engaged in a cursory rulemaking stating that the federal
government was reverting back to the Clinton-era
guidance—all without the normal notice and comment
typically needed to change rules.
A collection of states moved to intervene in the various
lawsuits challenging the rule around the country (including
this one), arguing that because the federal government was
now demonstrably in cahoots with the plaintiffs, the states
should be allowed to take up the mantle of defending the
Trump-era rule. Pointing to the fact that the Supreme Court
had both stayed multiple lower courts’ injunctions of the rule

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6 C ITY & C TY. OF S AN FRANCISCO V . USCIS
and—until the new administration voluntarily dismissed its
appeals—planned to review the rule’s validity, the states
contended there was something amuck about the federal
government’s new rulemaking-by-collusive-acquiescence.
In Judge VanDyke’s view, the states easily met the
intervention standard of Federal Rule of Civil Procedure 24.
First, because the states quickly intervened within days of
discovering that the federal government had abandoned their
interests, and the federal government asserted no apparent
prejudice in allowing intervention, Judge VanDyke wrote
that the motion to intervene was timely. Judge VanDyke
wrote that the states also have a “significant protectable
interest” in the continuing validity of the rule because
invalidating the rule could cost the states as much as $1.01
billion annually. Responding to the plaintiffs’ and the
federal government’s argument that in lieu of joining this
litigation, the states could vindicate their interests by
participating in an agency review process or asking the
agency to promulgate a new rule, Judge VanDyke observed
that this argument might have had more merit had the federal
government followed the traditional route of asking the
courts to hold the public charge cases in abeyance,
rescinding the rule per the Administrative Procedure Act,
and then promulgating a new rule through notice and
comment rulemaking. Judge VanDyke wrote that instead,
the federal government intentionally avoided the APA
entirely by acquiescing in a final district court judgment, and
altering the federal regulations by unilaterally reinstating the
Clinton-era field guidance as the de facto new rule—without
any formal agency rulemaking or meaningful notice to the
public. Judge VanDyke wrote that by deliberately evading
the administrative process in this way, the government
harmed the state intervenors by preventing them from
seeking any meaningful relief through agency channels.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 7
Judge VanDyke wrote that the disposition of this action,
together with the federal government’s other coordinated
efforts to eliminate the rule while avoiding APA review, will
impair or impede the states’ ability to protect their interest in
the 2019 rule’s estimated annual savings. Judge VanDyke
also wrote that the existing parties obviously do not
adequately represent the states’ interests because they are
now united in vigorous opposition to the rule.
Addressing the plaintiffs’ and the government’s
argument that this case is moot because the court cannot
offer adequate relief now that the 2019 rule has been vacated
by a different federal judge in the Seventh Circuit, Judge
VanDyke wrote that the parties opposing intervention had
not met their heavy burden of showing that there is not any
effective relief that a court can provide. Judge VanDyke
noted that the states could obtain effective relief because
they currently have an action pending before the Supreme
Court asking that Court to order the Seventh Circuit to
reverse or stay the vacatur of the rule, and if successful, that
would remove any obstacle to the states ultimately getting
relief in this court. Judge VanDyke pointed out that if the
states are successful in their current request that the Supreme
Court stay the Seventh Circuit’s vacatur of the rule, the
panel’s denial of intervention will leave the states with no
way to prevent one of the district courts in this circuit from
immediately imposing a nationwide preliminary injunction
of the rule or, worse, vacating the rule (again).
Judge VanDyke observed that there is a final reason why
intervention is especially warranted in this case. Judge
VanDyke wrote that by granting two stays (and a later
petition for certiorari), the Supreme Court repeatedly
indicated that the United States had “made a strong showing
that [it was] likely to succeed on the merits” in its defense of

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8 C ITY & C TY. OF S AN FRANCISCO V . USCIS
the rule. Judge VanDyke wrote that absent intervention, the
parties’ strategic cooperative dismissals preclude those
whose interests are no longer represented from pursuing
arguments that the Supreme Court has already alluded are
meritorious. Judge VanDyke wrote that even more
concerning, the dismissals lock in a final judgment and a
handful of presumptively wrong appellate court decisions in
multiple circuits, and circumvent the APA by avoiding
formal notice-and-comment procedures.
Judge VanDyke suggested a possible solution to this
novel problem of a new federal administration deliberately
short-circuiting the normal APA process. Judge VanDyke
observed that the Supreme Court obviously could allow the
states to intervene in the Seventh Circuit litigation and
defend the 2019 rule in place of the federal government. But
Judge VanDyke wrote that there may be a simpler solution
here that would not only address what has happened with
respect to the Public Charge rule but, perhaps more
importantly, would encourage future administrations to
change rules—not through collusive capitulation—but via
the familiar and required APA rulemaking process Congress
created for that purpose. Judge VanDyke wrote that the
Supreme Court could simply clarify that Munsingwear
vacatur of lower court decisions and judgments is
appropriate in this circumstance where the federal
government and the plaintiffs jointly mooted litigation by
acquiescing in a judgment against the government, which
then prevented the normal APA process for removing or
replacing a formal rule.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 9
COUNSEL
Mark Brnovich, Attorney General; Joseph A. Kanefield,
Chief Deputy and Chief of Staff; Brunn (“Beau”) W.
Roysden III, Solicitor General; Drew C. Ensign, Deputy
Solicitor General; Robert J. Makar, Assistant Attorney
General; Office of the Attorney General, Phoenix, Arizona;
Eric S. Schmitt, Attorney General; D. John Sauer, Solicitor
General; Michael E. Talent, Deputy Solicitor General;
Office of the Attorney General, Jefferson City, Missouri;
Steve Marshall, Alabama Attorney General; Leslie
Rutledge, Arkansas Attorney General; Theodore E. Rokita,
Indiana Attorney General; Derek Schmidt, Kansas Attorney
General; Jeff Landry, Louisiana Attorney General; Lynn
Fitch, Mississippi Attorney General; Austin Knudsen,
Montana Attorney General; Mike Hunter, Oklahoma
Attorney General; Alan Wilson, South Carolina Attorney
General; Ken Paxton, Texas Attorney General; Patrick
Morrisey, West Virginia Attorney General; for Proposed
Intervenors States of Arizona, Alabama, Arkansas, Indiana,
Kansas, Louisiana, Mississippi, Missouri, Montana,
Oklahoma, South Carolina, Texas, and West Virginia.
Matthew Rodriguez, Acting Attorney General; Michael L.
Newman, Senior Assistant Attorney General; Cherokee DM
Melton, Supervising Deputy Attorney General; Lisa
Cisneros, Katherine Lehe, Julia Hamumi Mass, Brenda
Ayon Verduzco, and Anna Rich, Deputy Attorneys General;
Office of the Attorney General, Oakland, California; for
Plaintiff-Appellee State of California.
James R. Williams, County Counsel; Greta S. Hansen, Chief
Assistant County Counsel; Laura Trice, Lead Deputy
County Counsel; Raphael N. Rajendra, Julia B. Spiegel, H.
Luke Edwards, and Hannah Kieschnick, Deputy County

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10 C ITY & C TY. OF S AN FRANCISCO V . USCIS
Counsel; Office of the County Counsel, County of Santa
Clara, San Jose, California; for Plaintiff-Appellee County of
Santa Clara.
Dennis J. Herrera, City Attorney; Jesse C. Smith, Chief
Assistant City Attorney; Ronald P. Flynn, Chief Deputy City
Attorney; Yvonne R. Mere, Sara J. Eisenberg, and Matthew
D. Goldberg, Deputy City Attorneys; Office of the City
Attorney, San Francisco, California; for Plaintiff-Appellee
City and County of San Francisco.
Karl A. Racine, Attorney General; Loren L. Alikhan,
Solicitor General; Office of the Attorney General,
Washington, D.C.; for Plaintiff-Appellee District of
Columbia.
Aaron M. Frey, Attorney General; Kimberly L. Patwardhan,
Assistant Attorney General; Office of the Attorney General,
Augusta, Maine; for Plaintiff-Appellee State of Maine.
Robert W. Ferguson, Attorney General; Noah G. Purcell,
Solicitor General; Tera M. Heintz, Deputy Solicitor General;
Jeffrey T. Sprung and Nathan K. Bays, Assistant Attorneys
General; Office of the Attorney General, Seattle,
Washington; for Plaintiff-Appellee State of Washington.
Ellen Rosenblum, Attorney General; Benjamin Gutman,
Solicitor General; Nicole DeFever and Patricia Garcia
Rincon, Assistant Attorneys General; Oregon Department of
Justice, Salem, Oregon; for Plaintiff-Appellee State of
Oregon.
Mark R. Herring, Attorney General; Michelle S. Kallen and
Jessica Merry Samuels, Deputy Solicitors General; Ryan
Spreague Hardy and Alice Ann Lloyd, Assistant Attorneys

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 11
General; Office of the Attorney General, Richmond,
Virginia; for Plaintiff-Appellee Commonwealth of Virginia.
Josh Shapiro, Attorney General; Michael J. Fischer, Chief
Deputy Attorney General; Aimee D. Thomson, Deputy
Attorney General; Office of the Attorney General,
Philadelphia, Pennsylvania; for Plaintiff-Appellee
Commonwealth of Pennsylvania.
Phil Weiser, Attorney General; Eric R. Olson, Solicitor
General; Office of the Attorney General, Denver, Colorado;
for Plaintiff-Appellee State of Colorado.
Kathleen Jennings, Attorney General; Christian Douglas
Wright, Director of Impact Litigation; Vanessa L. Kassab,
Deputy Attorney General; Delaware Department of Justice,
Wilmington, Delaware; for Plaintiff-Appellee State of
Delaware.
Kwame Raoul, Attorney General; Liza Roberson-Young,
Public Interest Counsel; Office of the Attorney General,
Chicago, Illinois; for Plaintiff-Appellee State of Illinois.
Clare E. Connors, Attorney General; Lili A. Young, Deputy
Attorney General; Department of the Attorney General,
Honolulu, Hawaii; for Plaintiff-Appellee State of Hawaii.
Brian E. Frosh, Attorney General; Jeffrey P. Dunlap,
Assisant Attorney General; Office of the Attorney General,
Baltimore, Maryland; for Plaintiff-Appellee State of
Maryland.
Maura Healey, Attorney General; Abigail B. Taylor, Chief,
Civil Rights Division; David Urena, Special Assistant
Attorney General; Angela Brooks, Assistant Attorney

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12 C ITY & C TY. OF S AN FRANCISCO V . USCIS
General; Office of the Attorney General, Boston,
Massachusetts; for Plaintiff-Appellee Commonwealth of
Massachusetts.
Dana Nessel, Attorney General; Fadwa A. Hammoud,
Solicitor General; Toni L. Harris, First Assistant Attorney
General; Michigan Department of the Attorney General,
Lansing, Michigan; for Plaintiffs-Appellees People of
Michigan.
Keith Ellison, Attorney General; R.J. Detrick, Assistant
Attorney General; Office of the Attorney General, St. Paul,
Minnesota; for Plaintiff-Appellee State of Minnesota.
Aaron D. Ford, Attorney General; Heidi Parry Stern,
Solicitor General; Office of the Attorney General, Las
Vegas, Nevada; for Plaintiff-Appellee State of Nevada.
Burbir S. Grewal, Attorney General; Maria Soueid, Deputy
Attorney General; Office of the Attorney General, Trenton,
New Jersey; for Plaintiff-Appellee State of New Jersey.
Hector Balderas, Attorney General; Tania Maestas, Chief
Deputy Attorney General; Office of the Attorney General,
Santa Fe, New Mexico; for Plaintiff-Appellee State of New
Mexico.
Peter F. Neronha, Attorney General; Lauren E. Hill, Special
Assistant Attorney General; Office of the Attorney General,
Providence, Rhode Island; for Plaintiff-Appellee State of
Rhode Island.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 13
ORDER
The Motion of State of South Carolina to Join Motion to
Intervene by the States of Arizona, et al., is GRANTED.
The Motion of State of Missouri to Join Motion to
Intervene by the States of Arizona, et al., is GRANTED.
The Motion to Intervene by the States of Arizona, et al.,
is DENIED.
VANDYKE, Circuit Judge, dissenting from the denial of
intervention:
With the recent change in federal administrations, the
Biden Administration stopped defending certain rules
promulgated by the Trump Administration, including the
Public Charge rule at issue in this case. That in itself is
neither surprising nor particularly unusual. Elections have
consequences, as they say, and a common enough one is that
new presidential administrations, especially of a different
party, often disagree with some of the rules promulgated by
their predecessors. But here, as I explain in more detail
below, the new administration did something quite
extraordinary with the Public Charge rule. In concert with
the various plaintiffs who had challenged the rule in federal
courts across the country, the federal defendants
simultaneously dismissed all the cases challenging the rule
(including cases pending before the Supreme Court),
acquiesced in a single judge’s nationwide vacatur of the rule,
leveraged that now-unopposed vacatur to immediately
remove the rule from the Federal Register, and quickly
engaged in a cursory rulemaking stating that the federal
government was reverting back to the Clinton-era

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14 C ITY & C TY. OF S AN FRANCISCO V . USCIS
guidance—all without the normal notice and comment
typically needed to change rules.
In short, the new administration didn’t just stop
defending the prior administration’s rule and ask the courts
to stay the legal challenges while it promulgated a new rule
through the ordinary (and invariably time- and resource-
consuming) process envisioned by the APA. Instead,
together with the plaintiffs challenging the rule, it
implemented a plan to instantly terminate the rule with
extreme prejudice—ensuring not only that the rule was gone
faster than toilet paper in a pandemic, but that it could
effectively never, ever be resurrected, even by a future
administration. All while avoiding the normal messy public
participation generally required to change a federal rule. Not
bad for a day’s work.
But not everyone was impressed with this rare display of
governmental efficiency. Swiftly rebounding from the
whiplash, a collection of states quickly moved to intervene
in the various lawsuits challenging the rule around the
country (including this one), arguing that because the federal
government was now demonstrably in cahoots with the
plaintiffs, the states should be allowed to take up the mantle
of defending the Trump-era rule. Pointing to the fact that the
Supreme Court had both stayed multiple lower courts’
injunctions of the rule and—until the new administration
voluntarily dismissed its appeals—planned to review the
rule’s validity, the states contended there is something
amuck about the federal government’s new rulemaking-by-
collusive-acquiescence.
The panel majority denies the states’ motion for
intervention. I conclude intervention is warranted, and
therefore respectfully dissent. Before explaining why, I first
provide some background on the Public Charge rule and the

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 15
legal challenges to it. And after explaining why we should
have granted intervention, I briefly conclude with what I
think might be a possible solution to this novel problem of a
new federal administration deliberately (1) short-circuiting
the normal APA process by using a single judge to engage
in de facto nationwide rulemaking and (2) locking in adverse
legal precedents that the Supreme Court has already signaled
are highly questionable.
I. Background
A. The term “Public Charge”
The term “public charge” has been a part of our country’s
statutory immigration lexicon for more than a century. City
& County of San Francisco v. USCIS, 981 F.3d 742, 749 (9th
Cir. 2020) (noting the first use in the Immigration Act of
1882). The most recent regulatory interpretation of that term
has prompted various circuits across the nation to spill much
ink arguing over its precise historical contours. See, e.g.,
Cook County v. Wolf, 962 F.3d 208, 222–29 (7th Cir. 2020);
New York v. U.S. Dep’t of Homeland Security, 969 F.3d 42,
63–80 (2d Cir. 2020); CASA de Md., Inc. v. Trump, 971 F.3d
220, 230–34 (4th Cir. 2020), vacated for reh’g en banc,
981 F.3d 311 (4th Cir. 2020) (dismissed Mar. 11, 2021); City
& County of San Francisco, 981 F.3d at 756–58.
Throughout much of its history, however, “public charge”
has maintained a less-than-precise meaning, even as the term
was continuously used in various state and federal statutes
denying admission or adjustment of immigration status to
noncitizens that were “likely at any time to become a public
charge.” 8 U.S.C. § 1182(a)(4)(A); see also Cook County,
962 F.3d at 238–42 (Barrett, J., dissenting) (explaining the
statutory usages and inferred meanings of the term “public
charge” throughout its history).

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16 C ITY & C TY. OF S AN FRANCISCO V . USCIS
In a laudable attempt to give the term a more concrete
meaning, the Clinton Administration proposed a rule to
define the term “public charge,” but the effort was ultimately
abandoned and a final rule never issued. See Inadmissibility
and Deportability on Public Charge Grounds, 64 Fed. Reg.
28,676 (proposed May 26, 1999). Enduring from that
attempt, however, was field guidance defining a “public
charge.” Field Guidance on Deportability and
Inadmissibility on Public Charge Grounds, 64 Fed. Reg.
28,689, 28,692 (May 26, 1999). This field guidance was not
binding, but the Department of Homeland Security (DHS)
followed it in the absence of explicit regulatory direction.
See New York, 969 F.3d at 53.
Under the guidance, an individual was considered a
“public charge” if he was likely to receive “[c]ash assistance
for income maintenance [or] institutionalization for long-
term care at government expense.” 64 Fed. Reg. at 28,692.
But an individual seeking adjustment of status would not be
considered a “public charge,” even though he would need
government-provided housing, government-paid electrical
assistance, government-provided food, government health
insurance for himself and his children, and government-
provided childcare while using government-provided job
training. See 64 Fed. Reg. at 28,692–93. In short, under the
de facto rule in existence before the Trump Administration
promulgated an actual rule, a noncitizen would not be
deemed a public charge even though the government
furnished essentially his every need (and many of his wants),
just as long as the government didn’t give him cash benefits
that he could then use to pay for his Netflix subscription.
While the ambiguous concept of a “public charge” no
doubt allows for substantial interpretive elasticity, that
seems quite a stretch. Indeed, it seems exactly backwards

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 17
from what most people would think makes someone a
“public charge.” Nowadays, almost everybody in this
country is getting cash stimulus payments from the IRS on
what feels like a semi-regular basis, and nobody thinks that
alone makes them a public charge. Call me crazy, but I
expect most people would say it is being overly reliant on
the government to meet your needs that makes one a public
charge, not whether the welfare benefits are provided in cash
or in kind.
B. New Public Charge Definition
Nearly two decades after the Clinton Administration
promulgated its guidance, the Trump Administration in
August 2019 issued a final rule—after notice and
comment—defining “public charge.” Inadmissibility on
Public Charge Grounds; Final Rule, 84 Fed. Reg. 41,292
(Aug. 14, 2019). The 2019 rule looked prospectively at
applications for admission or adjustment of status to
determine whether the individual was “more likely than not
at any time in the future to receive one or more designated
public benefits for more than 12 months in the aggregate
within any 36-month period.” Id. at 41,295. The rule
considered whether an individual would likely receive cash
from the government and/or “means-tested non-cash
benefits . . . which bear directly on the recipient’s self-
sufficiency and . . . account for significant federal
expenditures on low-income individuals.” Id. at 41,296. If,
under the totality of circumstances analysis, a noncitizen
applying for admission or adjustment of status would likely
need specified cash benefits and/or various non-monetizable
government-provided housing, food assistance, or medical
insurance for more than a collective twelve months, then the
noncitizen could be considered a public charge. Id. at 41,501
(citing 8 C.F.R. § 212.21).

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18 C ITY & C TY. OF S AN FRANCISCO V . USCIS
Because many categories of immigrants are either not
eligible for these types of public benefits or are exempted
from the public charge exclusion, the rule primarily affected
only a limited subset of immigrants—nonimmigrant visa
holders applying for green cards. See Cook County,
962 F.3d at 235–38 (Barrett, J., dissenting).1 While not
currently eligible for public benefits, upon adjustment of
status, those individuals would be eligible in the future—
thus, “[t]he public charge rule is concerned with what use a
green card applicant would make of this future eligibility.”
Id. at 237.
C. Challenging the 2019 Public Charge Rule
Notwithstanding that the 2019 rule affected only a
narrow group of people, almost none of whom have
previously used public benefits, a score of outraged entities
challenged the rule.2 In late 2019, district courts in the
Second, Fourth, Seventh, and Ninth Circuits all
preliminarily enjoined the rule’s enforcement. See New York
1 A lawful permanent resident—already admitted to the U.S. and
thus eligible for select public benefits—could also be subject to the 2019
rule if the individual left the United States for more than 180 days, which
would bring his residency into question and prompt the need to seek
admission upon returning. See Cook County, 962 F.3d at 236 (Barrett,
J., dissenting).
2 The states challenging the rule alleged injury in the form of
resident noncitizens, confused by the language of the rule, unnecessarily
disenrolling from state public benefits. See New York, 969 F.3d at 59–
60. DHS explained that the new rule would actually save the states
money because they would be paying out less in public benefits. Id. at
60. The challenging states didn’t disagree that the rule would directly
save them money, but countered with a response that would delight
salespeople everywhere: sometimes you have to spend money to save it.
Id.; see also City & County of San Francisco, 981 F.3d at 755.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 19
v. U.S. Dep’t of Homeland Sec., 408 F. Supp. 3d 334, 353
(S.D.N.Y. 2019); CASA de Md., Inc. v. Trump, 414 F. Supp.
3d 760, 788 (D. Md. 2019); Cook County v. McAleenan,
417 F. Supp. 3d 1008, 1014 (N.D. Ill. 2019); City & County
of San Francisco v. USCIS, 408 F. Supp. 3d 1057, 1073
(N.D. Cal. 2019); Washington v. U.S. Dep’t of Homeland
Sec., 408 F. Supp. 3d 1191, 1224 (E.D. Wash. 2019). A
divided motions panel of this court stayed the injunctions
issued in this circuit in a published opinion, thereby allowing
the rule to go into effect. City & County of San Francisco v.
USCIS, 944 F.3d 773, 781 (9th Cir. 2019). Likewise, the
Fourth Circuit stayed the preliminary injunction in its circuit.
CASA de Md., Inc., 971 F.3d at 237. The Second and
Seventh Circuits initially denied stays, but the Supreme
Court stepped in and stayed the preliminary injunctions
issued in those circuits as well. See Dep’t of Homeland Sec.
v. New York, 140 S. Ct. 599, 599 (2020); Wolf v. Cook
County, 140 S. Ct. 681, 681 (2020). In sum, although the
plaintiffs had a nice run of initial successes challenging the
rule, by early 2020, all the injunctions against the rule had
been stayed and the rule was in effect nationwide.
Undeterred by the Supreme Court’s signal that
challenges to the rule were ultimately likely to fail on the
merits, lower courts continued to hammer away. The
Second Circuit in continuing litigation affirmed the issuance
of its circuit’s preliminary injunction (with a limited scope),
as did divided panels in the Seventh Circuit and this circuit.
See New York, 969 F.3d at 50 (affirming the preliminary
injunction, but with a limited scope); Cook County, 962 F.3d
at 215; City & County of San Francisco, 981 F.3d at 763
(affirming preliminary injunctions, but with a limited scope).
But a divided Fourth Circuit panel reversed, noting that the
Supreme Court’s stay in other circuits’ proceedings “would
have been improbable if not impossible had the government,

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as the stay applicant, not made a strong showing that it was
likely to succeed on the merits.” CASA de Md., Inc.,
971 F.3d at 229 (citation and internal quotation marks
omitted).
Meanwhile, back in the Seventh Circuit, having moved
on from the preliminary injunction stage to the merits phase
of litigation, the Northern District of Illinois on November
2, 2020 entered a Rule 54(b) final judgment against the
federal government and vacated the rule in its entirety. Cook
County v. Wolf, No. 1:19-cv-06334, 2020 WL 6393005,
at *6–7 (N.D. Ill. Nov. 2, 2020). Notwithstanding the
Supreme Court’s stay of its earlier preliminary injunction,
the district court denied the government’s request to stay the
vacatur of the rule. Id. The Seventh Circuit, perhaps more
experienced at reading the Supreme Court, stepped in and
stayed implementation of the district court’s judgment
pending appeal. Order Granting Motion to Stay Judgment,
Cook County v. Wolf, No. 20-3150 (7th Cir. Nov. 19, 2020),
ECF No. 21.
While all this was going on, the federal government filed
multiple petitions for certiorari seeking Supreme Court
review of the Second, Seventh, and Ninth Circuit decisions
concluding that the rule was likely unlawful. As these
petitions were pending, President Biden took office in
January 2021. Almost exactly a month later, the Supreme
Court on February 22, 2021 granted review of the Second
Circuit’s case. See Dep’t of Homeland Sec. v. New York, No.
20-449, 2021 WL 666376, at *1 (U.S. Feb. 22, 2021). While
obviously one can never fully predict how the Supreme
Court is going to decide a case, the Supreme Court’s earlier
stays—combined with its later cert grant of a lower court
decision at odds with those stays—did not bode well for
opponents of the rule.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 21
D. DHS’s Rapid Dismissal of the Litigation
One of those opponents was the new Biden
Administration, which put the federal government in the
awkward position of having a case teed up before the
Supreme Court that it knew it was likely to win, but now
really wanted to lose. So in the early hours of March 9, 2021,
despite the Supreme Court having granted certiorari just two
weeks prior in a related case that the government had asked
the Court to review, DHS in coordination with the plaintiffs
moved to dismiss the Seventh Circuit appeal of the district
court’s vacatur of the rule.3 Approximately an hour and a
half later, DHS released a statement explaining that “the
Department of Justice will no longer pursue appellate review
of judicial decisions invalidating or enjoining enforcement
of the 2019 Rule.”4 With a reaction time the envy of every
appellate court, the Seventh Circuit only a few hours after
DHS’s statement granted the motion to dismiss and
immediately issued the mandate.5 Later that same evening,
DHS issued another statement noting that “[f]ollowing the
Seventh Circuit dismissal this afternoon, the final judgment
from the Northern District of Illinois, which vacated the
2019 public charge rule, went into effect.” It continued that
“[a]s a result, the 1999 interim field guidance on the public
3 See Unopposed Motion to Voluntarily Dismiss Appeal, Cook
County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 23.
4 Press Release, U.S. Dep’t of Homeland Sec., DHS Statement on
Litigation Related to the Public Charge Ground of Inadmissibility
(Mar. 9, 2021), https://www.dhs.gov/news/2021/03/09/dhs-statement-
litigation-related-public-charge-ground-inadmissibility.
5 Order Dismissing Appeal, Cook County v. Wolf, No. 20-3150 (7th
Cir. Mar. 9, 2021), ECF No. 24-1; Notice of Issuance of Mandate, Cook
County v. Wolf, No. 20-3150 (7th Cir. Mar. 9, 2021), ECF No. 24-2.

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22 C ITY & C TY. OF S AN FRANCISCO V . USCIS
charge inadmissibility provision (i.e., the [Clinton-era]
policy that was in place before the 2019 public charge rule)
is now in effect.”6 A little over 24 hours later, the parties
filed a joint stipulation to dismiss the case in the Northern
District of Illinois.7 The district court closed the case the
following day.8
On the same day it dismissed its Seventh Circuit appeal,
the federal government, now BFFs with its prior opponents,
also filed joint stipulations to dismiss all the cases pending
before the Supreme Court, including the Second Circuit case
in which the Supreme Court had already granted cert.9
Consistent with the Supreme Court’s Rule 46.1, which
allows automatic dismissal of a case by unanimous
agreement of the parties, the Clerk of the Supreme Court,
“without further reference to the Court,” dismissed those
cases. Sup. Ct. R 46.1.10
6 Press Release, U.S. Dep’t of Homeland Sec., DHS Secretary
Statement on the 2019 Public Charge Rule (Mar. 9, 2021),
https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-2019-
public-charge-rule.
7 Joint Stipulation of Dismissal with Prejudice, Cook County v. Wolf,
No. 19-cv-6334 (N.D. Ill. Mar. 11, 2019), ECF No. 253.
8 Notification of Docket Entry, Cook County v. Wolf, No. 19-cv-
6334 (N.D. Ill. Mar. 12, 2019), ECF No. 254.
9 Joint Stipulation to Dismiss, U.S. Dep’t of Homeland Sec. v. New
York, No. 20-449 (U.S. Mar. 9, 2021); Joint Stipulation to Dismiss,
Mayorkas v. Cook County, No. 20-450 (U.S. Mar. 9, 2021); Joint
Stipulation to Dismiss, USCIS v. City & County of San Francisco, No.
20-962 (U.S. Mar. 9, 2021).
10 Mayorkas v. Cook County, No. 20-450, 2021 WL 1081063 (U.S.
Mar. 9, 2021); USCIS v. City & County of San Francisco, No. 20-962,

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 23
In the afternoon of that same day, March 9, 2021, the
parties also moved to dismiss their case in the Fourth
Circuit.11 The Fourth Circuit granted the unopposed motion
and issued the mandate two days later, on March 11, 2021,
noting the lack of opposition.12
On that same day—March 11, 2021, only two days after
the federal government’s volte-face—fourteen states13
responded in the Seventh and Fourth Circuits to the parties’
synchronized blitzkrieg, collectively filing a Motion to
Recall the Mandate to Permit Intervention as Appellant, an
Opposed Motion to Reconsider, or alternatively, Rehear, a
Motion to Dismiss, and an Opposed Motion to Intervene.14
2021 WL 1081068 (U.S. Mar. 9, 2021); Dep’t of Homeland Sec. v. New
York, No. 20-449, 2021 WL 1081216 (U.S. Mar. 9, 2021).
11 See Unopposed Motion to Voluntarily Dismiss Appeal, CASA de
Md. v. Biden, No. 19-2222 (4th Cir. Mar. 9, 2021), ECF No. 210.
12 See Order, CASA de Md. v. Biden, No. 19-2222 (4th Cir. Mar. 11,
2021), ECF No. 211; Rule 42(b) Mandate, CASA de Md. v. Biden, No.
19-2222 (4th Cir. Mar. 11, 2021), ECF No. 212.
13 The states are Texas, Alabama, Arizona, Arkansas, Indiana,
Kansas, Kentucky, Louisiana, Mississippi, Montana, Ohio, Oklahoma,
South Carolina, and West Virginia. The day before, on March 10, 2021,
the states of Arizona, Alabama, Arkansas, Indiana, Kansas, Louisiana,
Mississippi, Montana, Oklahoma, Texas, and West Virginia, filed the
Motion to Intervene now denied by this panel. See Motion to Intervene,
City and County of San Francisco v. USCIS, Nos. 19-17213, 19-17214,
19-35914 (9th Cir. Mar. 10, 2021). South Carolina and Missouri
subsequently moved to join the motion before our court.
14 See Motion to Recall the Mandate to Permit Intervention as
Appellant, Opposed Motion to Reconsider, or in the Alternative to
Rehear, the Motion to Dismiss, Opposed Motion to Intervene-
Appellants, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11, 2021),

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The states explained that “[b]ecause the Court issued its
mandate within hours of the United States’ announcement
that it would no longer defend the Rule, interested parties
had no ability to intervene before it did so,” and “because the
United States did not inform the States that it intended to
cease defending the Rule before abandoning numerous cases
supporting the Rule nationwide, the States did not have an
opportunity to intervene at an earlier point.”15
The Seventh Circuit summarily denied the states’
motions on March 15, 2021,16 coincidentally the same day
that DHS issued a final rule removing the 2019 rule. The
Fourth Circuit also summarily denied the states’ motions on
March 18, 2021.17 On March 19, 2021, having been denied
intervention or any other relief by the Seventh Circuit, the
states asked the Supreme Court to order intervention or grant
ECF Nos. 25-1, 25-2, 25-3; Motion to Recall the Mandate to Permit
Intervention as Appellant, Opposed Motion to Reconsider, or in the
Alternative to Rehear, the Motion to Dismiss, Opposed Motion for Leave
to Intervene-Appellants, CASA de Md. v. Biden, No. 19-2222 (4th Cir.
Mar. 11, 2021), ECF Nos. 213, 214, 215.
15 See Motion to Recall the Mandate to Permit Intervention as
Appellant, Cook County v. Wolf, No. 20-3150, (7th Cir. Mar. 11, 2021),
ECF Nos. 25-1, at 4.
16 See Order Denying Motions, Cook County v. Wolf, No. 20-3150
(7th Cir. Mar. 15, 2021), ECF No. 26.
17 See Order Denying Motions, CASA de Md. v. Biden, No. 19-2222
(4th Cir. Mar. 18, 2021), ECF No. 216.

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 25
alternative relief that would allow them to revive the lower
court litigation.18
E. DHS’s Rescission of the 2019 Rule
On March 15, 2021, DHS issued a final rule “remov[ing]
the regulations resulting from [the 2019 rule], which has
since been vacated by a Federal district court.”19 Notably, it
issued the final rule without a notice and comment period or
delayed effective date, stating instead that it was
promulgating a rule that was already in effect: “[t]his rule is
effective on March 9, 2021, as a result of the district court’s
vacatur.” It explained that “[b]ecause this rule simply
implements the district court’s vacatur of the August 2019
rule, as a consequence of which the August 2019 rule no
longer has any legal effect, DHS is not required to provide
notice and comment or delay the effective date of this rule.”
Accordingly, there was “good cause” to “bypass[] any
otherwise applicable requirements of notice and comment
and a delayed effective date” as “unnecessary for
implementation of the court’s order vacating the rule . . . in
light of the agency’s immediate need to implement the now-
effective final judgment.”20
This is the background against which we are presented
the instant motion to intervene. Arguing that the federal
government managed to snatch defeat from the jaws of
18 See Application for Leave to Intervene & for a Stay of Judgment,
Texas v. Cook County, No. 20A150 (U.S. Mar. 19, 2021).
19 Inadmissibility on Public Charge Grounds; Implementation of
Vacatur, 86 Fed. Reg. 14,221 (Mar. 15, 2021) (to be codified at 8 C.F.R.
pts. 103, 106, 212–14, 245, 248).
20 Id. at 14,221.

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26 C ITY & C TY. OF S AN FRANCISCO V . USCIS
victory only by naked capitulation, the states ask for an
opportunity to pick up the football and step into the federal
government’s shoes, just as the formerly adversarial parties
are walking off the field together, hand-in-hand, celebrating
their “win-win.” Meanwhile, the plaintiffs and feds, only
months ago bitter enemies, collectively press us to deny
intervention. The game is over, they say. You can’t put
Humpty Dumpty back together again. The horse hasn’t just
left the barn—it’s dead, and never coming back.
II. Analysis
The federal government and the plaintiffs have certainly
played their hand well. Not only have they gotten rid of a
rule they dislike, but they’ve done so in a way that allowed
them to dodge the pesky requirements of the APA and
ensure that it will be very difficult for any future
administration to promulgate another rule like the 2019 rule.
But putting aside one’s view of the merits of the rule itself,
that doesn’t seem like a good thing for good government.
Leveraging a single judge’s ruling into a mechanism to avoid
the public participation in rule changes envisioned by the
APA should trouble pretty much everyone, one would hope.
Especially when the legal validity of that ruling is highly
suspect and left untested only because of the collusive
actions of the parties. Left unchecked, it seems quite likely
this will become the mechanism of choice for future
administrations to replace disfavored rules with prior
favored ones.
But of course, just because something is bad policy
doesn’t always mean there is a legal basis to challenge it.
Ultimately, the question currently before this panel is
whether the states should be allowed to intervene—that is,
not whether they should win the game, but just whether they
should be allowed to play. That question is controlled by a

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 27
well-established standard that favors intervention. As
explained below, I think the states have easily met that
standard here.
A. The States Meet the Intervention Standard
The states’ motion to intervene is governed by Federal
Rule of Civil Procedure 24. Int’l Union, United Auto.,
Aerospace & Agric. Implement Workers of Am., AFL-CIO,
Local 283 v. Scofield, 382 U.S. 205, 217 n.10 (1965); Day v.
Apoliona, 505 F.3d 963, 965 (9th Cir. 2007). Per Rule
24(a)(2), applicants can intervene in an action as of right
when they meet the following four requirements:
(1) the intervention application is timely;
(2) the applicant has a significant protectable
interest relating to the property or transaction
that is the subject of the action; (3) the
disposition of the action may, as a practical
matter, impair or impede the applicant’s
ability to protect its interest; and (4) the
existing parties may not adequately represent
the applicant’s interest.
Prete v. Bradbury, 438 F.3d 949, 954 (9th Cir. 2006)
(citation and internal quotation marks omitted); see also Fed.
R. Civ. P. 24(a)(2). When determining whether these four
“requirements are met, we normally follow ‘practical and
equitable considerations’ and construe the Rule ‘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).
To evaluate intervention’s timeliness, “we consider
(1) the stage of the proceeding at which an applicant seeks
to intervene; (2) the prejudice to other parties; and (3) the

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28 C ITY & C TY. OF S AN FRANCISCO V . USCIS
reason for and length of the delay.” Peruta v. County of San
Diego, 824 F.3d 919, 940 (9th Cir. 2016) (en banc) (citation
and internal quotation marks omitted). If a putative
intervenor moves promptly to intervene when it becomes
clear that their interests “would no longer be protected . . .
there is no reason why [the intervention] should not be
considered timely.” United Airlines, Inc. v. McDonald,
432 U.S. 385, 394–95 (1977). The states here moved to
intervene in the public charge cases within mere days of the
federal government making public that it no longer sought to
defend the rule. The plaintiffs and the federal government
argue against intervention by contending that “[n]either
practical nor equitable concerns justify intervention at this
late stage in the litigation.” But this is hardly the typical case
where putative intervenors sat on their hands until the
eleventh hour. Instead, the federal government robustly
defended the rule for more than a year in courts across the
nation before suddenly acquiescing in its vacatur and
dismissing all the public charge cases without prior notice.
Because the states quickly intervened when they discovered
that the federal government had abandoned their interests,
and the federal government has asserted no apparent
prejudice in allowing intervention, the motion to intervene is
timely.
The states also have a “significant protectable interest”
in the continuing validity of the rule because invalidating the
rule could cost the states as much as $1.01 billion annually.21
The federal government contends that in lieu of joining this
litigation, the states can vindicate their interests by
participating in an agency review process or asking the
21 Motion to Intervene by the States at 1, 3–5, City & County of San
Francisco v. USCIS, 981 F.3d 742 (9th Cir. 2021) (Nos. 19-17213, 19-
17214, 19-35914).

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 29
agency to promulgate a new rule. This argument might have
had more merit had the federal government followed the
traditional route of asking the courts to hold the public
charge cases in abeyance, rescinding the rule per the APA,
and then promulgating a new rule through notice and
comment rulemaking. But instead, the federal government
intentionally avoided the APA entirely by acquiescing in a
final district court judgment and altering the federal
regulations by unilaterally reinstating the 1999 field
guidance. See 86 Fed. Reg. at 14,221 (“This rule removes
from the Code of Federal Regulations . . . the regulatory text
that DHS promulgated in the August 2019 rule and restores
the regulatory text to appear as it did prior to the issuance of
the August 2019 rule.”). Its carefully coordinated actions
effectively removed the Trump-era rule and installed the
Clinton-era guidance as the de facto new rule—without any
formal agency rulemaking or meaningful notice to the
public. By deliberately evading the administrative process
in this way, the government harmed the state intervenors by
preventing them from seeking any meaningful relief through
agency channels. The courts can and should remedy this
procedural harm. See Massachusetts v. EPA, 549 U.S. 497,
518 (2007) (“When a litigant is vested with a procedural
right, that litigant has standing if there is some possibility
that the requested relief will prompt the injury-causing party
to reconsider the decision that allegedly harmed the
litigant.”).
The disposition of this action, together with the federal
government’s other coordinated efforts to eliminate the rule
while avoiding APA review, will impair or impede the
states’ ability to protect their interest in the 2019 rule’s
estimated annual savings discussed above. And the existing
parties obviously do not adequately represent the states’
interests because they are now united in vigorous opposition

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30 C ITY & C TY. OF S AN FRANCISCO V . USCIS
to the rule. See Arakaki v. Cayetano, 324 F.3d 1078, 1086
(9th Cir. 2003) (“The most important factor in determining
the adequacy of representation is how the interest compares
with the interests of existing parties.”).
Against the states’ arguments in favor of intervention,
the federal government and plaintiffs have one main
response: this case is moot because the court cannot offer
adequate relief now that the 2019 rule has been vacated by a
different federal judge in a different circuit.
“The party asserting mootness bears the burden of
establishing that there is no effective relief that the court can
provide.” Forest Guardians v. Johanns, 450 F.3d 455, 461
(9th Cir. 2006). “That burden is ‘heavy’; a case is not moot
where any effective relief may be granted.” Id. (emphasis in
original) (citation omitted).
The parties opposing intervention have failed to meet
their “heavy” burden here. Id. (citation omitted). As the
states explain, they could obtain effective relief because they
currently have an action pending before the Supreme Court
asking that Court to order the Seventh Circuit to reverse or
stay the vacatur of the rule. If successful, that would remove
any obstacle to the states ultimately getting relief in this
court. See Allied Concrete & Supply Co. v Baker, 904 F.3d
1053, 1066 (9th Cir. 2018) (distinguishing moot cases where
the underlying litigation had concluded from cases where “a
potential petition for rehearing or certiorari keeps a case
alive”). Indeed, if the states are successful in their current
request that the Supreme Court stay the Seventh Circuit’s
vacatur of the rule, given our denial of their intervention here
the states will be left with no way to prevent one of the
district courts in our circuit from immediately imposing a
nationwide preliminary injunction of the rule or, worse,
vacating the rule (again). The horse may have left the barn,

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 31
but the rumors of its death are, if not greatly exaggerated, at
least premature.
Since this case is not moot, I would have granted the
states’ intervention motion because now that the federal
government has abandoned the field, only the states
themselves can present their arguments in favor of the rule
to the Court. By denying the motion to intervene, we are
sanctioning a collude-and-circumvent tactic by the parties,
who clearly now share the same agenda. Cf. Knox v. Serv.
Emp. Int’l Union, Loc. 1000, 567 U.S. 298, 307 (2012)
(warning that “postcertiorari maneuvers designed to insulate
a decision from review by [the Supreme] Court must be
viewed with a critical eye”).
There is a final reason why intervention is especially
warranted in this case. By granting two stays (and a later
petition for certiorari), the Supreme Court repeatedly
indicated that the United States had “made a strong showing
that [it was] likely to succeed on the merits” in its defense of
the rule. Nken v. Holder, 556 U.S. 418, 434 (2009) (citation
omitted). Absent intervention, the parties’ strategic
cooperative dismissals preclude those whose interests are no
longer represented from pursuing arguments that the
Supreme Court has already alluded are meritorious. Even
more concerning, the dismissals lock in a final judgment and
a handful of presumptively wrong appellate court decisions
in multiple circuits, and circumvent the APA by avoiding
formal notice-and-comment procedures. See Transp. Div. of
the Int’l Ass’n of Sheet Metal, Air, Rail, & Transp. Workers
v. Fed. R.R. Admin., 988 F.3d 1170, 1180 (9th Cir. 2021)
(noting that among “the most fundamental of the APA’s
procedural requirements” is the requirement that “the agency
shall give interested persons an opportunity to participate in
the rule making through submission of written data, views,

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32 C ITY & C TY. OF S AN FRANCISCO V . USCIS
or arguments for the agency’s consideration” (citation and
internal quotation marks omitted)). The United States’
evasion of one of the APA’s most fundamental
requirements, especially on such shaky grounds as a district
court decision that never withstood the crucible of full
appellate review, further supports intervention here.
B. Munsingwear Vacatur?
There is truth to the federal government’s and plaintiffs’
arguments in opposition to intervention that, as things
currently stand, the Ninth Circuit’s Public Charge cases have
been relegated to little more than a rearguard action. So long
as the 2019 rule itself remains vacated nationwide by a single
judge in the Seventh Circuit, not much can be done in this
circuit to affect that. While that doesn’t technically make
this case moot for purposes of our intervention analysis, it
does highlight the expansive reach of the parties’
coordinated actions, and how impressively effective those
actions are at preventing anyone or any single court from
unwinding their multifaceted, calculated capitulation and
avoidance of the APA. They really have smashed Humpty
Dumpty into pieces spread across the nation, and there isn’t
a single court (or future administration) that can do much
about it.
Except the one court that has yet to address the states’
arguments: the Supreme Court. First, the Supreme Court
obviously could allow the states to intervene in the Seventh
Circuit litigation and defend the 2019 rule in place of the
federal government. But I think there may be a simpler
solution here that would not only address what has happened
with respect to the Public Charge rule but, perhaps more
importantly, would encourage future administrations to
change rules—not through collusive capitulation—but via

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 33
the familiar and required APA rulemaking process Congress
created for that purpose.
The solution is that the Supreme Court could simply
clarify that Munsingwear vacatur of lower court decisions
and judgments is appropriate in this circumstance where the
federal government and the plaintiffs jointly mooted
litigation by acquiescing in a judgment against the
government, which then prevented the normal APA process
for removing or replacing a formal rule. Under
Munsingwear, when a civil case is mooted while on appeal
to the Supreme Court, “[t]he established practice” is “to
reverse or vacate the judgment below and remand with a
direction to dismiss.” United States v. Munsingwear, Inc.,
340 U.S. 36, 39 (1950). “Because this practice is rooted in
equity, the decision whether to vacate turns on ‘the
conditions and circumstances of the particular case.’” Azar
v. Garza, 138 S. Ct. 1790, 1792 (2018) (per curiam) (citation
omitted).
For instance, “[v]acatur is in order when mootness
occurs through . . . the ‘unilateral action of the party who
prevailed in the lower court.’” Arizonans for Off. Eng. v.
Arizona, 520 U.S. 43, 71–72 (1997) (quoting U.S. Bancorp
Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 23 (1994)).
This is to prevent a party from securing “a favorable
judgment, tak[ing] voluntary action that moots the dispute,
and then retain[ing] the benefit of the judgment.” Arizonans
for Off. Eng., 520 U.S. at 75 (alterations omitted). By
requiring that the lower court judgment be vacated under
those circumstances, Munsingwear “prevent[s] a judgment,
unreviewable because of mootness, from spawning any legal
consequences.” Munsingwear, 340 U.S. at 41. That’s why
vacatur in such circumstances is “generally ‘automatic.’”

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34 C ITY & C TY. OF S AN FRANCISCO V . USCIS
NASD Dispute Resol., Inc. v. Jud. Council of State of Cal.,
488 F.3d 1065, 1068 (9th Cir. 2007) (citation omitted).
But under the Bancorp exception to Munsingwear,
courts usually won’t vacate lower court decisions when the
appellant’s voluntary actions moot the appeal. See Bancorp,
513 U.S. at 25. The reason for that is straightforward:
generally, if a party lost below, but does something
intentional to moot its case while the appeal is pending, you
don’t need to worry about that losing party deliberately
mooting the case on appeal so that it can “retain the benefit
of the judgment” without risking a future adverse decision.
For the party that lost below, there isn’t generally any
“benefit of the judgment” to be retained. If the losing party
voluntarily moots the case on appeal, it is invariably for
some reason other than trying to manipulate the court system
to lock in favorable precedent while insulating that precedent
from further review. That is why, in reliance on Bancorp,
courts rarely Munsingwear vacate a lower court decision
when the parties voluntarily settle a case. See generally id.
In those situations, “[t]he judgment is not unreviewable, but
simply unreviewed by [the losing party’s] own choice.” Id.
Those appellants “voluntarily forfeited [their] legal remedy
by the ordinary process of appeal or certiorari, thereby
surrendering [their] claim to the equitable remedy of
vacatur.” Id.
The federal government’s coordinated settlement of the
Public Charge cases falls within the technical parameters of
the Bancorp exception to Munsingwear vacatur because the
federal government was the appellant in these cases. But the
uniquely inequitable circumstances facing the intervening
states here, together with the government’s maneuvering
precisely so that it could retain the benefit of some
questionable judgments it now really likes, demonstrates

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C ITY & C TY. OF S AN FRANCISCO V . USCIS 35
that this situation clearly falls far outside any reasonable
rationale for Bancorp’s exception to Munsingwear’s normal
rule. The settlements that the states seek to challenge are a
transparent attempt by a new federal administration and its
prior litigation opponents to not only rid the federal
government of a now-disfavored rule, but also to avoid the
APA’s procedures in changing that rule and force any future
administration that wants to enact a similar rule to fight
against the strong headwinds of dubious Ninth, Seventh, and
Second Circuit precedent. This is, in short, precisely an
example of a party “tak[ing] voluntary action that moots the
dispute, and then retain[ing] the benefit of the judgment.”
Arizonans for Off. Eng., 520 U.S. at 75 (alterations omitted).
Because both Munsingwear and Bancorp turn on
equity—and even Bancorp notes that “exceptional
circumstance[s] may . . . counsel in favor of . . . vacatur”
when parties settle, Bancorp, 513 U.S. at 29—the Supreme
Court should make clear that the Bancorp exception to
Munsingwear, which usually counsels against vacating a
judgment where the appellant’s voluntary actions mooted
the appeal, does not apply in this circumstance. The states’
proceedings before the Supreme Court seem like a perfect
vehicle for the Court to address this unique situation where
a new administration doesn’t like a duly enacted rule and
attempts to insulate the lower court’s judgment vacating the
disfavored rule from further appellate review.
Clarifying that all lower court decisions and judgments
should be vacated under these circumstances would have
both immediate and long-term salutary effects. First, the
current administration will be required to do what every
administration before it did with existing rules they didn’t
like—promulgate a new rule subject to all of the procedural
protections provided by the APA. Second, the thicket of

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36 C ITY & C TY. OF S AN FRANCISCO V . USCIS
suspect lower-court precedents created by the Public Charge
litigation, which the Supreme Court seemed poised to
correct before the parties’ voluntary dismissal, would be
cleared away instead of remaining as a calcified obstacle to
future executive discretion. And third, future
administrations (and courts, and challengers) will be
incentivized to follow the APA’s rules, rather than attempt
procedural workarounds that eliminate the public’s
participation in administrative rulemaking.22
Our court should have allowed the states to intervene in
these suits. But one hopes that maybe our incorrect denial
of intervention may be as inconsequential as the panel
majority’s prior incorrect opinion, once the Supreme Court
makes clear that our dirty slate must be wiped clean under
Munsingwear—and with it, all its inequitable repercussions.
22 There is one additional reason why Munsingwear vacatur of the
lower courts’ decisions would be particularly appropriate in the context
of the Public Charge rule. By design, the federal government’s and
plaintiffs’ coordinated dismissals act to replace the Trump
Administration’s Public Charge rule with the Clinton Administration’s
Public Charge “guidance.” Press Release, U.S. Dep’t of Homeland Sec.,
DHS Secretary Statement on the 2019 Public Charge Rule (Mar. 9,
2021), https://www.dhs.gov/news/2021/03/09/dhs-secretary-statement-
2019-public-charge-rule. As discussed, under the Clinton-era guidance,
a noncitizen who is entirely dependent on in kind government support—
for food, housing, medical care, etc.—cannot be considered a “public
charge” unless he also receives cash benefits. That seems like it might
run into problems under the APA. But the government’s circumvention
of the APA allowed it to slip back into applying the old guidance without
even needing to take that into consideration.

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