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Case 6:22-cv-00885-RRS-CBW Document 90 Filed 05/20/22 Page 1 of 47 PageID #: 3765

UNITED STATES DISTRICT COURT


WESTERN DISTRICT OF LOUISIANA
LAFAYETTE DIVISION

STATE OF LOUISIANA ET AL CASE NO. 6:22-CV-00885

VERSUS JUDGE ROBERT R. SUMMERHAYS

CENTERS FOR DISEASE CONTROL & MAGISTRATE JUDGE CAROL B.


PREVENTION, ET AL WHITEHURST

MEMORANDUM RULmG
Twenty-four states (the "Plaintiff States") brought the present action seeking to enjoin the

Centers for Disease Control ("CDC") from terminating the COVID-related restrictions on

immigration enacted by the CDC pursuant to its authority under Section 265 of Title 42. They

contend that the CDC's decision to terminate its Title 42 mles violates the Administrative

Procedure Act ("APA"). They contend that the CDC failed to consider the effects of a Title 42

termination on immigration enforcement and the states. The instant matter before the Court is the

Plaintiff States9 IVIotion for Preliminary Injunction [ECF No. 13]. The Court held a hearing on the

parties9 legal arguments on May 13, 2022. The parties did not request an evidentiary hearing, but

instead rely on the evidence previously filed into the record. The Court has considered the record,

the parties9 arguments, and mles as follows.

I.

FINDINGS OF FACT

A. The CDC's Title 42 Orders.

1. The Public Health Services Act, 42 U.S.C. § 265 (referred to as "Title 42"),

empowers the CDC to enter appropriate regulations limiting immigration to combat the spread

of serious communicable diseases:

1
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Whenever the [Director of the CDC] determines that by reason of the existence
of any communicable disease in a foreign country there is serious danger of the
introduction of such disease into the United States, and that this danger is so
increased by the introduction of persons or property from such country that a
suspension of the right to introduce such persons and property is required in the
interest of the public health, the [Director of the CDC], in accordance with
regulations approved by the President, shall have the power to prohibit, in
whole or in part, the introduction of persons and property from such countries
or places as he shall designate in order to avert such danger, and for such period
of time as he may deem necessary for such purpose.

2. On March 20, 2020, in response to the COVID-19 pandemic, the U.S. Department

of Health & Human Services ("HHS") issued an Interim Final Rule ("IFR") amending the

applicable regulations to create "an efficient regulatory mechanism to suspend the introduction

of persons" to prevent COVID-19 spread into the U.S.1 In doing so, the CDC invoked the good

cause exception to the APA, citing "the national emergency caused by COVID-19."2 However,

the CDC expressly invited "comment on all aspects of this interim final rule, including its

likely costs and benefits and the impacts that it is likely to have on the public health[.]9'3

3. After receiving 218 comments during the 30-day comment window that closed

April 24, 2020, the CDC published a final mle September 11, 2020. That rule "establishe[d]

final regulations under which the [CDC] may suspend ... the introduction of persons into the

United States for such period of time as the Director may deem necessary to avert the serious

danger of the introduction of a quarantinable communicable disease into the United States."4

This Final Rule became effective October 13, 2020 (CDC's collective policies of excluding

aliens are hereinafter referred to as the 'Title 42 Orders.")

1 85 Fed. Reg. 16,562.


2 Mat 16,565.
3 Id.
4 85 Fed. Reg. 56,424, 56,424, 56,448 (Sep. 11,2020) (codified at 42 C.F.R. § 71.40).
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4. Concurrently with the March 2020 IFR, the CDC Director issued an order

suspending the introduction into the United States of all "persons traveling from Canada or

Mexico/" except for "U.S. citizens^ lawful permanent residents, and their spouses and

children," and other limited exceptions5 (the "March 2020 Order").

5. The March 2020 Order provided that it would expire after 30 days unless renewed.6

In May, the 30-day renewal requirement was abandoned and instead replaced with a mandatory

review of the policy's continued necessity every 30 days.7 In other words, the order would no

longer automatically expire.

6. When the Final Rule became effective, CDC issued a new order, the "October 2020

Order."8 The October 2020 Order was "substantially the same as" prior orders, was subject to

30-day periodic reviews, and was to remain in force until CDC had "publish[ed] a notice in

the Federal Register terminating this Order and its Extensions."9

7. On July 19, 2021, CDC issued a new order excepting unaccompanied children (the

"July 2021 Order").10 The CDC subsequently suspended the October 2020 Order and

incorporated by reference the July 2021 Order excepting unaccompanied children (the "August

2021 Order").11 That order stated that "the flow of migration directly impacts not only border

communities and regions, but also destination communities and healthcare resources of

both."12

5 85 Fed. Reg. 17,060 (Mar. 26,2020)


6 It was renewed in April and May of 2020. See 85 Fed. Reg. 22,424,22,427 (Apr. 22,2020); 85 Fed. Reg. 31,503
(May 26,2020).
7 85 Fed. Reg. 31,504.
8 85 Fed. Reg. 65,806, 65,807, 65,810, 65,812 (Oct. 16, 2020).
9 Id.
10 86 Fed. Reg. 38,717 (July 22,2021).
" 86 Fed. Reg. 42,828 (Aug. 5,2021).
12 86 Fed. Reg. 42,828, 42,835 (Aug. 5,2021).
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B. The Exceptions to the CDC's Title 42 Orders.

8. The August 2021 Order, like the prior Title 42 Orders, includes an exception for

"[p]ersons whom customs officers determine, with approval from a supervisor, should be

excepted from this Order based on the totality of the circumstances, including consideration of

significant law enforcement, officer and public safety, humanitarian, and public health

interests. DHS will consult with CDC regarding the standards for such exceptions to help

ensure consistency with current CDC guidance and public health recommendations."13

9. According to Bias Nunez-Neto, the Acting Assistant Secretary for Border and

Immigration Policy at the Department of Homeland Security, the exception cited above has

been used throughout the course of the pandemic in order to apply the normal Title 8

immigration enforcement procedures, rather than the Title 42 Order to certain situations.14

10. As to the individuals processed as exceptions from the Title 42 Orders during the

first quarter of 2022, "655 out of 745 (88%) single adults from Northern Triangle countries

who have been processed for expedited removal in the first quarter of this fiscal year have

already been removed or are in the process of being removed. Seventy-two percent (537 out of

745) of single adults from the Northern Triangle processed for expedited removal in the first

quarter of 2022 did not claim a fear and were subject to removal directly from CBP custody;

another 16% (118 people) claimed fear of torture or prosecution, were detained by ICE as they

went through the credible fear interview process, and were found not to have a credible fear

and subject to removal. Just 90 out of 745 (12%) were referred for full removal proceedings

under Section 1229a of Title 8 of the U.S. Code."15

13 Id.
14 Declaration of Bias Nunez-Neto, ^ 6, Exhibit A to ECF No.27.
157(/.at1fl8.
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C. The CDC's Termination Order.

11. On February 2, 2021, President Biden signed Executive Order 14010, in which he

ordered that "[t]he Secretary ofHHS and the Director of CDC, in consultation with [DHS],

shall promptly review and determine whether termination, rescission, or modification of the

[Title 42 orders] is necessary and appropriate."16

12. On March 11, 2022, CDC issued a new order (the "March 2022 Order")

superseding the August 2021 Order.17 The March 2022 Order apparently was issued in

response to litigation in Texas challenging Defendants' practice of not applying Title 42 to

unaccompanied alien children ("UAC").18 The March 2022 Order found that suspending entry

ofUACs was "not necessary to protect U.S. citizens."19

13. On April 1, 2022, CDC Director Walensky issued the Order Under Sections 362 &

365 of the Public Health Service Act20 ("Termination Order"). The Termination Order claimed

that it was "not a rule subject to notice and comment under the Administrative Procedure

Act."21 It did so on two stated bases: the "good cause" and "foreign affairs" exceptions of 5

U.S.C. §§ 553(a)(l) and (b)(3)(B).22

14. With regard to the "good cause" exception, the Termination Order states that:

This Termination, like the preceding Orders issued under this authority, is not a rule
subject to notice and comment under the Administrative Procedure Act (APA).
Even if it were, notice and comment are not required because there is good cause
to dispense with prior public notice and the opportunity to comment on this
Termination. Given the extraordinary nature of an order under Section 265, the
resultant restrictions on application for asylum and other immigration processes

16 86 Fed. Reg. 8,267 (Feb. 5,2021).


17 87 Fed. Reg. 15,243 CMar. 17, 2022).
18 See Texas v. Biden, 21-CV-00579 (N.D. Tex.).
19 87 Fed. Reg. 15,245.
20 87 Fed. Reg. 19,941 (Apr. 6,2022).
21 87 Fed. Reg. 19,941 (Apr. 6,2022).
22 Id.
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under Title 8, and the statutory and regulatory requirement that an CDC order under
the authority last no longer than necessary to protect public health, it would be
impracticable and contrary to the public interest and immigration laws that apply
in the absence of an order under 42 U.S.C. § 265 to delay the effective date of this
termination beyond May 23, 2022 for the reasons outlined herein. As explained,
DHS requires time to institute operational plans to implement this order, including
CO VID-19 mitigation measures, and begin regular immigration processing
pursuant to Title 8. In light of the August Order's significant disruption of ordinary
immigration processing and DHS's need for time to implement an orderly and safe
termination of the order, there is good cause not to delay issuing this termination or
to delay the termination of this order past May 23, 2022.23

15. As to the foreign affairs exception, the Termination Order states only that "this

Order concerns ongoing discussions with Canada, Mexico, and other countries regarding

immigration and how best to control COVID-19 transmission over shared borders and

therefore directly 'involve[s]... a... foreign affairs function of the United States;' thus, notice

and comment are not required."24

16. The Termination Order states that the CDC's decision to issue the Order is based

on its determination that "although the implementation of the CDC Orders to reduce the

numbers ofnoncitizens held in congregate settings in POEs and Border Patrol stations has been

part of the layered CO VID-19 mitigation strategy used over the past two years, less

burdensome measures are now available to mitigate the introduction, transmission, and spread

ofCOVID-19 resulting from the entry of covered noncitizens."25

17. The implementation date of the Termination Order is May 23, 2022. The purpose

of this delay is to "give DHS time to implement additional COVID-19 mitigation measures."26

23 Id.
24 Id. (footnote omitted).
25 Id.
26 Id.
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D. The Plaintiff States File Suit

18. On April 3, 2022, the states of Arizona, Louisiana and Missouri filed a Complaint

for declaratory and injunctive relief against the Centers for Disease Control & Prevention,

Rochelle Walensky, U.S. Department of Health & Human Semces, Xavier Becerra^ U.S.

Department of Homeland Security, Alejandro Mayorkas, U.S. Customs & Border Protection,

Christopher Magnus, U.S. Immigration & Customs Enforcement, Tae Johnson, U.S.

Citizenship & Immigration Services, Ur Jaddou, U.S. Border Patrol, Raul Ortiz, U.S.

Department of Justice, Merrick Garland, Executive Office of Immigration, David Neal, Joseph

R. Biden, Jr.,27 and the United States of America ("Defendants").28

19. On April 14, 2022, a First Amended Complaint29 was filed to include an additional

eighteen (18) states.30

20. On May 5,2022, a Second Amended Complaint31 was filed to include an additional

three (3) states.32 The States of Arizona, Louisiana, Missouri, and the twenty-one (21)

additional states added to the case are referred to collectively as the 'Tlaintiff States."

21. The Plaintiff States seek to enjoin the implementation of the Termination Order

issued by Defendants.

22. On April 14, 2022, the Plaintiff States filed a Motion for Preliminary Injunction.33

27 All individuals are sued in their official capacities.


28ECFNo.l.
29 ECF No. 10.
30 The First Amended Complaint was filed by the States of Arizona, Louisiana, Missouri, Alabama, Alaska, Arkansas,
Florida, Georgia, Idaho, Kansas, Kentucky, Mississippi, Montana, Nebraska, Ohio, Oklahoma, South Carolina,
Tennessee, Utah, West Virginia and Wyoming.
31 ECF No. 44.
32 The Second Amended Complaint added North Dakota, Texas, and Virginia as plamtiffs.
33 ECF No. 13.

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23. On April 21, 2022, the Plaintiff States filed a Motion for Temporary Restraining

Order.34

24. The Court issued a Temporary Restraining Order35 ("TRO") on April 27, 2022,

designed to maintain the status quo and prohibit the Defendants from beginning to implement

the Termination Order prior to its stated implementation date of May 23, 2022.

25. On May 11, 2022, the Court entered an Order36 which extended the TRO until the

earlier of (1) this Court's decision on the Motion for Preliminary Injunction, or (2) May 23,

2022.

E. Impact of the Termination Order on Immigration.37

26. The Plaintiff States contend that the Termination Order will result in a surge of

border crossings, and that this surge will result in an increase in illegal immigrants residing in

the states.38 They also contend that the transition back to immigration enforcement under Title

8 will result in an increase in immigration "parolees" in the Plaintiff States.39

27. The Termination Order states that "CDC recognizes that the Termination of the

August Order will lead to an increase in the number of noncitizens being processed in DHS

facilities which could result in overcrowding in congregate settings. Moreover, DHS projects,

based on available intelligence as well as seasonal migration patterns, an increase in encounters

in the coming months, which could lead to further crowding in DHS facilities."40

34 ECF No. 24.


35 ECF No. 37.
36 ECF No. 60.
37 The evidentiary requirements for a preliminary injunction under Rule 65 of the Federal Rules of Civil Procedure
are more relaxed than the evidentiary standards required to prevail at a trial on the merits. An application for a
preliminary injunction may be supported by affidavits and evidence that is otherwise inadmissible at a trial on the
merits. 11A Wright & Miller. Fed. Prac. & Proc. § 2949 at 237-38 (3d ed.2013).
38 ECFNo.l3.1at 9-10.
39ECFNo.lat39.
40 Id.

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28. The Plaintiff States also point to reports that DHS estimates that "border crossings"

will increase from approximately 7,000 crossings per day to approximately 18,000 crossings

per day after the Termination Order goes into effect.41

29. According to media sources cited by the Plaintiff States and uncontested by

Defendants, DHS "intelligence estimates that perhaps 25,000 migrants already are waiting in

Mexican shelters just south of the border for Title 42 to end."42 Further intelligence indicates

that the number of aliens in northern Mexico waiting to cross illegally into the United States

is "[bjetween 30,000 to 60,000."43

30. The Plaintiff States contend that DHS's own data indicates that many immigrants

crossing the border will evade capture. The record includes DHS estimates that "there have

been more than 300,000 known 'gotaways9—migrants who were not apprehended or turned

themselves in and who got past agents—since fiscal year 2022 began on October 1st."44 In

addition, the record includes a report that former Border Patrol Chief Rodney Scott stated that

"there had been approximately 400,000 getaways in the entirety ofFY 2021 ."45

31. In sum, the record supports the Plaintiff States' position that the Termination Order

will result in increased border crossings and that, based on the government's estimates, the

increase may be as high as three-fold.

F. The CDC9s Acknowledgement of the Impact of Its Orders On Local Communities and
Healthcare.

32. The record also indicates that, in issuing its prior Title 42 orders, the CDC

acknowledged the impact of migration on border communities: "[T]he flow of migration

41 Declaration of James K. Rogers, ^ 2, Exhibit 5, Exhibit A to ECF No. 13.


42 Mat Exhibit 3.
43 Id. at Exhibit 4.
44 Rogers Decl. Ex. 1.
45 Id.

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directly impacts not only border communities and regions, but also destination communities

and healthcare resources ofboth.^6

33. The CDC has also acknowledged the impact of its orders on DHS's operations and

the health ofDHS personnel. The CDC's October 2020 Order states that the CDC's prior Title

42 Orders had "reduced the risk of COVID-19 transmission ... and thereby reduced risks to

DHS personnel and the U.S. health care system."47 The CDC further stated that its Title 42

orders had "significantly reduced the population of covered aliens in congregate settings in

[points of entry] and Border Patrol stations, thereby reducing the risk of COVED-19

transmission for DHS personnel and others within these facilities."48

G. Impact of an Increase in Illegal Immigration on Arizona.

34. The State of Arizona alleges that the lifting of the Title 42 Orders will cause an

increase in immigrants coming into the state and will result in increased law enforcement and

healthcare costs.49

35. According to MarkNapier, Chief of Staff for the Cochise County Sheriffs Office

in Cochise County, Arizona, for the period from July 2020 to January 2021, only 27.6% of

undocumented persons crossing the southern border were apprehended by DHS personnel.50

Further, from "January through September 2020 there were 181 sets of human remains

recovered in the border region of Arizona's desert. Each of these recoveries results in the

tremendous expenditure of law enforcement resources."51 Mr. Napier further indicated that

"[m]igrants abandoned by transnational criminal organizations trafficking in humans on the

46 86 Fed. Reg. 42,828, 42,835 (Aug. 5,2021) (emphasis added).


47 85 Fed. Reg. 65,806, 65,810 (Oct. 16, 2020).
48 Id.
49 Declaration of Anthony Napolitano, Assistant Attorney General for the Arizona Attorney General's Office, Exhibit
BtoECFNo.13.
50 Declaration of Mark D. Napier, If 4, Exhibit 1 to Napolitano Declaration, Exhibit B to ECF No. 13.
51 Id. ati 5.

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north side of the border frequently call local law enforcement in distress.... These often led to

significant expenditures of county and Border Patrol resources to affect rescue in the hope of

preventing additional migrant deaths."52

36. According to Mark Lamb, the Sheriff of Final County, Arizona, the Final County

Shemffs Office "has recorded a surge in the number of pursuits of suspected unauthorized

aliens" since the beginning of 2021.53 The cost of such pursuits "represents a roughly 71%

increase in [personnel] costs over ... the same time period last year.5 When "pursuits result

in arrests, the Final County Sheriffs Office incurs the cost of incarcerating the individual.. ..an

additional cost of$lj50 per booking on average."55 According to the opinion of Sheriff Lamb,

"the increase in incidents, and therefore increase in costs, ... is at least in part directly related

to amioimced changes in federal border enforcement and alien removal policies."56

37. Mark Damiels, the Sheriff of Cochise County, Arizona, submitted a declaration

stating that "[individuals illegally crossing through [the border] cut trails, trample plant life,

and leave behind litter and potentially hazardous waste including soiled clothing and

excrement."57 Further, he states that, since October 2021, Cochise County has experienced "an

increase in costs related to pursuits and apprehensions of illegal immigrants and the costs of

property damage and other crimes in our community."58

38. According to Robert J. Trenschel, President and CEO ofYuma Regional Medical

Center ("YRMC"), "[f]rom January through June 2019, ... an estimated 1,293 adult patients

52 Id. at If 6.
53 Declaration of Mark Lamb, ^ 4, Exhibit 2 to Napolitano Declaration, Exhibit B to ECF No. 13.
54 Id. at IT 6.
55M.at^7.
56 Id. at H 8.
57 Declaration of Mark Daimels, ^ 7, Exhibit 3 to Napolitano Declaration, Exhibit B to ECF No. 13.
58 Id. at If 4.

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were brought to YRMC while in ICE custody"59 and that "[t]he estimated cost of [their] care

in that six-month period was $810,43 3, "60 but that only $264,383 was reimbursed, "leaving a

$546,050 unreimbursed gap for that six-month period alone."61 "These cost estimates also do

not include the substantial care expenses for the multiple mothers who delivered babies at

YRMC while under ICE custody during that timeframe."62

39. According to Shaka Okougbo, DC Operations Manager for the Arizona Department

of Corrections, Rehabilitation and Reentry ("ADCRR"), "[t]he cost to ADCRR and the State

of Arizona from persons being placed in community supemsion per person is $4,163.60 per

year. (2019)"63

40. In sum, the record supports Arizona's position that an increase in border crossings

as a result of the Termination Order will increase the state's costs for healthcare

reimbursements. Defendants did not dispute the facts supporting this finding.

H. Impact of an Increase in Illegal Immigration on MUssouri.

41. According to Maddie Green, Assistant Attorney General for Missouri, "Missouri

spent an average of $10,654 per student in school year 2019-2020 regardless of immigration

status/'64 and further that "[a] 2018 study shows that an estimated 3,000 illegal alien school-

aged children were enrolled in Missouri schools."65 "Missouri . expended $361,702 in

emergency medical care costs for treatment of ineligible aliens during Fiscal Year 2020."66 In

addition, "Missouri's Department of Revenue ("DOR") uses the Systemic Alien Verification

59 Declaration of Robert J. Trenschel, CO, MPH, FACHE, ^ 5, Exhibit 4 to Napolitano Declaration, Exhibit B to ECF
No. 13.
60 Id. at If 6.
6lld.at^7.
62 Id. at If 8.
63 Declaration ofShaka Okougbo, ^ 4, Exhibit 6 to Napolitano Declaration, Exhibit B to ECF No. 13.
64 Declaration ofMaddie M. Green, ^ 8, Exhibit D to ECF No. 13.
65 Id. at If 9.
66Id.aa^\\.

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of Entitlements ("SAVE") system to verify unlawful individuals' lawful immigration status at

a cost of $0.80 for the initial inquiry and $0.50 for any additional inquiries. In state fiscal year

2020, DOR paid $30,114.11 for SAVE inquiries."67 "Statistically, for every 1,000 aliens who

remain unlawfully in the United States, 56 end up residing in Missouri."68

42. According to Allison Phillips, the co-founder of The Human Trafficking Training

Center and the former Director for the Anti-Human Trafficking Task Force for the Missouri

Attorney General's Office, "there is a relationship between the prevalence of human trafficking

in the United States and activity on the US-Mexico border. Immigration policies as they relate

to the management of the southern border of the United States are a contributing factor to

overall rates of human trafficking in the United States."69

43. In sum, the record supports Missouri's position that an increase in border crossings

as a result of the Termination Order will increase the state's costs for healthcare

reimbursements, the provision of educational services, and the administration of its driver's

license program. Defendants did not dispute the facts supporting these findings.

I. Impact of an Increase in Illegal Immisration on Louisiana.

44. According to Tommy Romero, Iberia Parish Sheriff, [mjigrants coming from the

border are sometimes transporting dmgs into or across Louisiana, including in or through

Iberia Parish. In the past 24 months, the Iberia Parish Sheriffs Office has confiscated dmgs

suspected to have been moved from the border into Louisiana, including but not limited to

marijuana, fentanyl, methamphetamine, and heroin. This criminal activity requires substantial

law enforcement resources to apprehend, detain, prosecute, and incarcerate the individual

67 Id. at If 12.
68 Id. at TT 10, citing Pew Research Center, U.S. unauthorized immigrant population estimates by state, 2016 (Feb. 5,
2019), https://www.pewresearch.org/hispanic/mteractives/u-s-unauthorizedmunigraats-by-state/.
69 Declaration ofAlison Phillips, ^ 18, Exhibit E to ECF No. 13.

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involved."70 Sheriff Romero opined that "a pause or significant decrease in ICE removals will

incentivize undocumented immigration. This will most certainly encourage an increase in the

number of migrants who attempt to illegally cross the border into the United States and, in

turn, into Louisiana."71

J. Unverified Allegations.7

45. Arizona alleges that it has "approximately 275,000 to 365,000 immigrants living in

the State that are not lawfully in the United States; about 54% of them do not have health

insurance; about 32% of them have incomes below the poverty level; and they cost Arizona

taxpayers more than $1.7 billion a year."73

46. Louisiana alleges that it has "approximately 70,000 to 78,000 aliens living in the

State that are not lawfully in the United States; more than 70% of them do not have health

insurance; about 34% of them have incomes below the poverty level; and they cost Louisiana

taxpayers more than $362 million a year."7

47. Missouri alleges that "approximately 56 out of every 1,000 unlawful aliens who

enter the United States end up residing in Missouri. These unlawful aliens impose pocketbook

injuries on Missouri in the form of education, healthcare, and criminal-justice costs. These

70 Declaration of Tommy Romero, ^ 4, Exhibit C to ECF No.13.


71 Id. ati 5.
72 The Plaintiff States also point to allegations in their Complaint to support relief. For purposes of a prelitninary
injunction under Rule 65 of the Federal Rules of Civil Procedure, unverified allegations are not sufficient, standing
alone, to support relief. While the evidentiary standards for a preliminary injunction are relaxed, relief can be based
on pleadings alone only if the pleadings are verified. See 1 1A Wright & Miller, Federal Practice and Procedure § 2949
(3d ed. 2013). Accordingly, the Court will not consider these unverified allegations in determining whether the
Plaintiff States have satisfied the requirements for a preliminary injunction under Rule 65.
73 Second Amended Complaint, ECF No. 44, ^ 121, citmg various studies including Unauthorized Immigrant
Population Profiles, Migration Policy Institute, https://www.misrationpolicy.org/data/unauthorized-immigrant-
population; U.S. unauthorized immigrant population estimates by state, Pew Research Center (2016),
https://www.pewresearch.or2;/hispanic/mter^ The Fiscal Burden of
Illegal Immigration, Federation for American Immigration Reform (2017), https://fairus.org/sites/default/:files/2017-
09/Fiscal-Burden-of-Ille2al-Immi2ration-2017.pdf
74 Id. at If 125.

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pocketbook injuries are irreparable because Missouri has no plausible recourse to recoup

them"75

48. Alabama alleges that it has "approximately 55,000 to 73,000 illegal aliens living in

the State; about 68% of them are uninsured; about 34% of them have incomes below the

poverty line; and they cost Alabama taxpayers more than $324.9 million a year."76

49. Alaska alleges that it has "approximately 5,000 to 11,260 illegal aliens living in the

State; they cost Alaska taxpayers more than $72 million a year."77

50. Arkansas alleges that it has "approximately 58,000 to 79,000 illegal aliens living in

the State; about 63% of them are uninsured; about 30% of them have incomes below the

poverty line; and they cost Arkansas taxpayers more than $339.5 million a year."78

51. Florida alleges that it has "approximately 772,000 to 957,000 illegal aliens living

in the State; about 61% of them are uninsured; about 28% of them have incomes below the

poverty line; and they cost Florida taxpayers more than $4.7 billion a year."79

52. Georgia alleges that it has "approximately 339,000 to 422,000 aliens living

unlawfully in the State; about 70% of them are uninsured; about 36% of them have incomes

below the poverty level; and they cost Georgia taxpayers more than $1.8 billion a year."80

53. Idaho alleges that it has "approximately 29,000 to 51,000 illegal aliens living in the

State; about 60% of them are uninsured; about 27% of them have incomes below the poverty

line; and they cost Idaho taxpayers more than $225.4 million a year."81

75 Id. at If 127.
76 Id. at If 133.
77 Id. at If 135.
7SId. at If 137.
79 Id. at If 139.
SOId.at^U2
81Mat^l45.

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54. Kansas alleges that it has "approximately 69,000 to 85,000 illegal aliens living in

the State; about 64% of them are uninsured; about 25% of them have incomes below the

poverty line; and they cost Kansas taxpayers more than $377 million a year."82

55. Kentucky alleges that it has "approximately 35,000 to 56,000 illegal aliens living

in the State; about 60% of them are uninsured; about 37% of them have incomes below the

poverty level; and they cost Kentucky taxpayers more than $261 million a year."83

56. Mississippi alleges that it has "approximately 20,000 to 28 J 50 illegal aliens living

in the State; about 75% of them are uninsured; about 49% of them have incomes below the

poverty level; and they cost Mississippi taxpayers more than $117 million a year."84

57. Montana alleges that it has "approximately 3,000 to 6,000 illegal aliens living in

the State, and they cost Montana taxpayers more than $27 million a year."85

58. Nebraska alleges that it has "approximately 42,000 to 60,000 illegal aliens living

in the State; about 56% of them are uninsured; about 30% of them have incomes below the

poverty line; and they cost Nebraska taxpayers more than $233.1 million a year."86

59. North Dakota alleges that it has "approximately 5,000 to 6,000 illegal aliens living

in the State, and they cost North Dakota taxpayers more than $27.4 million a year."87

60. Ohio alleges that "Ohio, according to a 2019 estimate, has almost 90,000 illegal

migrants living in the State. According to the same estimate, half of this population is

uninsured, two-thirds live below 200 percent of the poverty level, and 92 percent of school

aged children attend school. Ohio is required to pay the cost of emergency medical services

m Id. at If 147.
83 Mat If 149.
84 Id.at If 151.
85 M at If 153.
86 Id. at If 155.
87 Id. at If 157.

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for uninsured immigrants who otherwise qualify for Medicaid, through the Emergency

Medicaid program."88

61. Oklahoma alleges that it has "approximately 90,000 to 107,000 illegal aliens living

in the State; about 68% of them are uninsured; about 27% of them have incomes below the

poverty line; and they cost Oklahoma taxpayers more than $467 million a year."89

62. South Carolina alleges that it has "approximately 88,000 to 98,000 illegal aliens

living in the State; about 69% of them are uninsured; about 33% of them have incomes below

the poverty line; and they cost South Carolina taxpayers more than $471 million a year."90

63. Tennessee alleges that it has "approximately 128,000 to 135,000 illegal aliens

living in the State; about 73% of them are uninsured; about 30% of them have incomes below

the poverty line; and they cost Tennessee taxpayers more than $593 million a year.9991

64. Texas alleges that "Texas law subsidizes driver's licenses, including for

noncitizens/9 and that by "increasing the number of aliens who can secure subsidized licenses,

the Defendants impose significant financial harm on Texas/992 Texas also alleges that it

"spends significant amounts of money providing services to illegal aliens. Those services

include education services and healthcare, as well as many other social services broadly

available in Texas"93 and that it "funds multiple healthcare programs that cover illegal

aliens."94 Texas further alleges that it spends tens of millions of dollars annually on programs

? Id. at 1158.
89 Id. at H 161.
90 Id. at If 163.
91 Id. ati 165.
n Id. at If 167.
93 Matlf 168.
M Id. at If 169.

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which provide semces to illegal aliens, including the Emergency Medicaid program, the Texas

Family Violence Program, and the Texas Children's Health Insurance Program.95

65. Utah alleges that it has "approximately 89,000 to 113,000 illegal aliens living in

the State; about 61% of them are uninsured; about 23% of them have incomes below the

poverty line; and they cost Utah taxpayers more than $521 million a year."96

66. Virginia alleges that it has "approximately 251,000 to 337,800 illegal aliens living

in the State; about 68% of them are uninsured; about 21% of them have incomes below the

poverty line; and they cost Virginia taxpayers nearly $1.7 billion a year."97

67. West Virginia alleges that it has "approximately 4,000 to 6,000 illegal aliens living

in the State, and they cost West Virginia taxpayers more than $26.3 million a year."98

68. Wyoming alleges that it has "approximately 5,000 to 7,000 illegal aliens living in

the State, and they cost Wyoming taxpayers more than $26.1 million a year."99

II.
INJUNCTION STANDARD

A preliminary injunction is an extraordinary remedy.100 A preliminary injunction is

intended to preserve the status quo to "protect [the] plaintiff from irreparable injury and preserve

the court's power to render a meaningful decision after a trial on the merits."101 A preliminary

injunction requires proof of four elements: (1) a substantial threat of irreparable injury; (2) a

substantial likelihood of success on the merits; (3) that the threatened injury if the injunction is

95Mat1T170.
96 Id. at1[ 175.
97 Id. at H 177.
"Mat If 179.
"Mat IT 181.
100 Winter v. Nat. Res. Def. Council. Inc., 555 U.S. 7, 22 (2008).
101 11A Wright & Miller, Fed. Prac. & Proc. Civ. § 2947 (3d ed.)

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denied outweighs any harm that will result if the injunction is granted; and (4) that the grant of an

injunction will not disserve the public interest.102 The movant must "clearly carr[y] the burden of

persuasion on all four requirements."103 With respect to the proof supporting each element, the

Federal Rules of Evidence do not apply in preliminary injunction hearings and "in practice

affidavits usually are accepted on a preliminary injimction motion without regard to the strict

standards of Rule 56(e) [for summary judgment], and that hearsay evidence also may be

considered."104

III.
JURISDICTIONAL ARGUMENTS

A. Standing.

Defendants argue that the Plaintiff States do not have standing to bring their claims.

Jurisdiction under Article III of the Constitution requires the presence of a "case or controversy"

among the parties to a federal lawsuit.105 Standing is one aspect of this case-or-controversy

requirement.106 Standing identifies "those disputes which are appropriately resolved through the

judicial process/'z °7 and " ser/es to prevent the judicial process from being used to usurp the powers

of the political branches."108 Courts have adopted various "prudential" standing doctrines but

Article III standing requires, at a minimum, that the plaintiff show (1) an "injury in fact," (2)

"traceability"—in other words., a "causal connection between the injury and the conduct

complained of," and (3) "redressability"—a showing that the injury will likely "be redressed by a

102 Jordan v. Fisher, 823 F.3d 805, 809 (5fh Cir. 2016).
103 Id.
104 11A Wright & Miller, Fed. Prac. & Proc. § 2949 (3d ed. 20 13).
105 U.S. Const. amend, ffl, § 2; Spokeo, Inc. v. Robins, 578 U.S. 330, 136 S. Ct. 1540, 1549 (2016).
106 Spokeo, Inc., 136 S. Ct. at 1549 ("[T]he doctrine of standing derives from [Article Ill's] case-or-
controversy requirement....")
107 Lujan v. Defenders of Wildlife, 504 U.S.555, 560(1992).
108 Clapper v. Amnesty Int'l USA, 568 U.S. 398, 408 (2013).

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favorable decision"109 The injury-in-fact requirement ensures that the plaintiff has a "personal

stake in the outcome of the controversy."z 10 The plaintiffs injury must be "concrete, particularized,

and actual or imminent ...."ul Traceability requires that the plaintiffs injury be "fairly traceable

to the defendant's allegedly unlawful conduct/'112 while "redressability" requires a showing that

the plaintiffs injury is likely to be redressed by the relief requested in the complaint.113 The

Plaintiff States must ultimately prove standing by a preponderance of the evidence to obtain final

relief on the merits of their claims.114 At the preliminary injunction stage, however, "the movant

must clearly show only that each element of standing is likely to obtain in the case at hand."115 In

other words, the Plaintiff States must show a substantial likelihood that they will be able to prove

standing by a preponderance of the evidence at a trial on the merits. Only one party with standing

is required to establish Article III jurisdiction.116 Accordingly, only one of the Plaintiff States need

establish standing for the Court to grant relief.

Here, the Plaintiff States base "injury in fact" on the effect of the Termination Order on

border crossings and the resulting cost incurred by the states for medical sendces, education, and

law enforcement. Specifically, they contend that the Termination Order will increase daily border

crossings from approximately 7,000 to almost 18,000 crossings.117 The Defendants do not directly

challenge "redressability/" but focus instead on whether the Plaintiff States have demonstrated a

"cognizable" injury and "traceability." Accordingly, the Court will address whether the Plaintiff

States have satisfied the "cognizable injury" and traceability requirements for Article III standing.

lwLujan, 504 U.S. at 560-561.


110 Worth v. Seldin, 422 U.S. 490, 498 (1975) (internal quotation marks omitted).
111 Clapper, 568 U.S. at 409 (quoting Monsanto v. Geerts on Seed Farms, 561 U.S. 139, 149 (2010)).
112 Alien v. Wright, 468 U.S. 737, 751(1984).
113 Id.
114 Texas v. Biden, 20 F.4th 928 (5th Cir. 2021).
115 Speech First, Inc. v. Fenves, 979 F.3d 319, 330 (5th Cir. 2020).
116 Massachusetts v. EPA, 549 U.S.497,518,127 S.Ct. 1438,167 L.Ed.2d 248 (2007).
117 ECF No. 13, Exhibit A.

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1. Are the Plaintiff States Entitled to "Special Solicitude"?

The Court first addresses whether the Plaintiff States are entitled to "special solicitude" in

assessing whether they satisfy the requirements for Article III standing. In Massachusetts v.

EPAm Massachusetts challenged the Environmental Protection Agency's decision not to regulate

greenhouse-gas emissions from new motor vehicles on the grounds, inter alia, that increased

greenhouse-gas emissions contribute to global warming and the erosion of the state's coastal

areas.119 The Supreme Court held that Massachusetts was entitled to "special solicitude" in

assessing whether it satisfied the requirements for Article III standing.120 This special solicitude

doctrine relaxes the showing required for a state to establish standing.121 The Supreme Court

further reasoned that the states have surrendered "certain sovereign prerogatives" to the Federal

Government.122 With respect to greenhouse-gas emissions, those "sovereign prerogatives are now

lodged in the Federal Government, and Congress has ordered EPA to protect Massachusetts

(among others) by prescribing standards applicable" to air pollution that may "reasonably be

anticipated to endanger public health or welfare."123 A state may trigger "special solicitude" in the

standing analysis if it shows (1) that it has "a procedural right to challenge the action in

question/ and (2) "the challenged action must affect one of the State's quasi-sovereign

interest."125 For the Supreme Court, Massachusetts' "quasi-sovereign" interest was the

118 549 U.S. 497, 526 (2007).


119 Id.
120 Id.
121 Id. at 518 ("It is of considerable relevance that the party seeking review here is a sovereign State and not. .. a private
individual" given that "states are not normal litigants for purposes of invoking federal jurisdiction.")
122 549 U.S. at 519.
123 Id.
124 Texas v. Biden, 20 F.4th 928, 969 (5th Cir. 2021).
125 Id. (quoting 42 U.S.C. § 7521(a)(l)).

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preservation of its coastal lands through environmental regulation, which it could not protect

through police powers that had been surrendered to the Federal Government.126

In Texas v. United States n7 the Fifth Circuit addressed the special solicitude doctrine in

the immigration context in a challenge by over twenty-five (25) states to the Deferred Action for

Parents of Americans ("DAPA" Program). There, the Fifth Circuit concluded that the states met

the first requirement for the special solicitude doctrine because they were challenging a procedural

right under the APA. With respect to the second prong of the "special solicitude" doctrine, the

court concluded that DAPA affected a "quasi-sovereign" interest of the plaintiff states in that case.

The court obser/ed that, like the environmental regulation at issue in Massachusetts v. EPA, the

plaintiff states had "surrendered some of their sovereign prerogatives over immigration."128 The

State of Texas argued that, because state law required it to issue driver's licenses to some aliens

and to subsidize those licenses, the changes in immigration status caused by DAPA would cause

Texas to incur increased expenses as far as driver's licenses.129 According to the Fifth Circuit, this

would impose "substantial pressure on [the plaintiff states] to change their laws, which provide for

issuing driver's licenses to some aliens and subsidizing those licenses."130 The court concluded

that DAPA affected the plaintiff states9 "quasi-sovereign" interests because the Federal

Government's regulation of immigration requires them to "now rely on the Federal Government

to protect their interests."131

126 Id.
127 809 F.3d 134 (5th Cir. 2015).
128 Id. at 153.
129 Id.
130 Id.
131 Id. at 154.

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Here, the Plaintiff States rely on Texas v. United States132 and the Fifth Circuit's more

recent decision in Texas v. Biden133 In Texas v. Biden, the plaintiffs challenged DHS's decision to

terminate its Migrant Protection Protocols ("MPP"). Relying on its earlier decision in Texas v.

United States, the circuit court in Texas v. Biden found that the plaintiff states in that case were

exercising a procedural right under the APA to challenge DHS's suspension ofMPP, and that the

suspension of MPP would impact the states5 "quasi-sovereign" interest by creating pressure on

Texas to amend its driver's license laws and increasing the cost of issuing licenses.134

Here, the Plaintiff States have satisfied the first requirement for "special solicitude"

standing because they are exercising a procedural right by challenging the CDC's Termination

Order under the APA. Specifically, they challenge the CDC's failure to follow the APA's notice-

and-comment requirements for issuing the Termination Order, and, as a result, they argue that they

were unable to comment on the proposed termination. They also contend that the CDC?s

termination decision was arbitrary and capricious under the APA. The fact that the Plaintiff States

are exercising their procedural rights under the APA alone relaxes the showing needed to establish

the requirements of "redressability" and "immediacy."135 It also satisfies the first requirement for

"special solicitude" in the standing analysis.

With respect to the second prong of "special solicitude" standing, the Plaintiff States

contend that the Termination Order affects their "quasi-sovereign" interests. Specifically, they

argue that the Termination Order will result in a surge of border crossings that will impact law

enforcement, their provision of educational services, and the healthcare systems in their states. As

132 809 F.3d 134 (5th Cir. 2015).


133 20 F.4th 928.
134 20 F.4th at 970.
135 Summers v. Earth Island Institute, 555 U.S. 488, 496 (2009) ("a person who has been accorded a procedural right
to protect his concrete interest can assert that right without meeting all the normal standards for redressability and
munediacy.") Quoting Lujan v. Defenders of Wildlife, 504 U.S. 555, 559, 660 (1992)) (Emphasis omitted).

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Defendants correctly observe, the Plaintiff States do not rely on the same "quasi-sovereign"

interests cited by the Fifth Circuit in Texas v. Biden or Texas v. United States — specifically, that

the agency action at issue in those cases would pressure Texas to change its laws on issuing driver's

licenses. However, "special solicitude" standing is not limited to the specific quasi-sovereign

interest cited Texas v. Biden or Texas v. United States. Massachusetts v. EPA, for example, did not

involve agency action that pressured the state to change its laws. Rather, the enforcement (or lack

of enforcement) of federal environmental statutes affected Massachusetts' sovereign interest in its

territory.

Here, the Plaintiff States claim quasi-sovereign interests in the health and welfare of their

citizens in light of the pandemic, and in the administration of their healthcare and educational

systems. Defendants, however, argue that the Sixth Circuit's recent decision in Arizona v. Biden

precludes the Plaintiff States from relying on healthcare and education costs as a basis for "special

solicitude" standing.13 In Arizona v. Biden, the states of Arizona, Montana, and Ohio challenged

a DHS memorandum outlining its immigration enforcement priorities and policies. As here, the

plaintiffs in Arizona v. Biden challenged the agency's action under the APA and argued that the

new enforcement guidance would result in "downstream cost to the states in the form of additional

crime and public-welfare costs."137 Specifically, they argued that they would incur "additional

costs to pay for medical and educational services and additional law-enforcement burdens...."138

The Sixth Circuit panel in Arizona v. Biden mled that the plaintiffs were not entitled to "special

solicitude" standing because the "indirect fiscal burdens" cited by the plaintiffs did not amount to

the "quasi-sovereign" injuries that would satisfy the requirements for ""special solicitude" standing.

136 31 F.4th 469, 2022 WL 1090176 (6th Cir. 2022).


137 Id. at*2.
138 Id.

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Defendants' reliance on Arizona v. Biden is misplaced for at least two reasons. First, the

agency action at issue in Arizona v. Biden was fundamentally different from the CDC's decision

to terminate its Title 42 orders and allow DHS to resume operations under Title 8. Arizona v. Biden

involved a change by DHS in its agency guidance to individual immigration officers. The plaintiffs

there argued that implementation of this guidance would result in a "decrease in removals."139 This

alleged decrease in removals would then create the "indirect downstream costs" alleged by the

plaintiffs.140 According to the Sixth Circuit, it was purely "speculative whether and how the

Guidance's prioritization of the apprehension and the removal of the non-citizens in the [plaintiff

states] would injure each of them." This link between the new enforcement guidance and the

alleged decrease in removals was speculative because the impact of the enforcement guidance

would necessarily turn on the exercise of prosecutorial discretion by individual immigration

enforcement officers.142 Standing alone, the new guidance imposed no requirements and

commanded no action. In short, according to the court, the plaintiffs "did not connect the dots

between the decrease in removals and the Guidance's challenged prioritization."143 Here, in

contrast, the impact of the Termination Order is not based on prosecutorial discretion or the actions

of individual immigration officers. Rather, like the challenge to the termination ofMPP in Texas

v. Biden, the Plaintiff States challenge the termination of an entire immigration enforcement

regime enacted under Section 265 of Title 42.

Second, Arizona v. Biden is inconsistent with the Fifth Circuit's holding in Texas v. Biden

to the extent that the Sixth Circuit held that an increase in the states' healthcare reimbursement

139 Id. at *3.


140 Id.
141 Id. at *2.

142 Id. at 3.
143 Id.

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costs is not a sufficient basis for standing. In Texas v. Biden, the Fifth Circuit noted that the

plaintiffs subsidized healthcare—and, indeed, were required by law to do so—and that an increase

in these costs resulting from immigration was a sufficient basis for standing. In that case, the

district court found that the increase in immigration "releases" and "parolees" as a result ofMPP

would increase the states' healthcare costs because "both Texas and Missouri subsidize heath care

for immigrants, regardless of immigration status."145 The court further obser/ed that "federal law

affirmatively requires the states to make some of those expenditures."146 The Fifth Circuit

concluded that the district court's findings in this regard were not clearly erroneous and that the

findings on healthcare supported the plaintiffs' standing to sue.147

In sum, the Plaintiff States have demonstrated that the Tennination Order will affect their

"quasi-sovereign" interests based on its impact on their healthcare systems and their interest in the

health and welfare of their citizens. As the circuit expressly recognized in Texas v. United States,

the Plaintiff States have surrendered their control over immigration and, under Title 42, the CDC

has the authority to limit immigration in order to protect the citizens of the Plaintiff States from

communicable diseases^ such as COVID-19.148 Accordingly, the Court concludes that the Plaintiff

States are entitled to "special solicitude" as far as satisfying the requirements for standing.

2. Will the Plaintiff States Suffer a Cognizable Injury?

Defendants next argue that the Plaintiff States have not identified a "legally cognizable

injury" as grounds for Article III standing.149 The Plaintiff States assert that the predicted increase

in immigration following the Termination Order will cause increased costs to the states as far as

144 20 F.4fh at 969-70.


145 Id.
146 Id.
147 Id. at 970 ("It follows that Texas has been actually injured—or at the least, that it faces imminent injury without
the district court's injunction. Likewise with health care costs.") (emphasis added.)
148809F.3datl53.
149 ECF No. 40 at 13-14.

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education expenses and healthcare costs.150 The Plaintiff States also contend that the expected

increase in border crossings will strain state law enforcement resources due to an increase in

crime.151 The Plaintiff States further argue that they are required by law to provide education and

healthcare services to immigrants regardless of immigration status and that an increase in border

crossings will increase these expenditures.152

Citing the Sixth Circuit's decision in Arizona v. Biden, Defendants argue that education,

healthcare, and law enforcement expenditures are merely "indirect, downstream costs" and are not

legally cognizable injuries for purposes of Article III standing. The flaw in this argument is that,

as explained previously, it runs counter to bindmg Fifth Circuit precedent in Texas v. Biden.

Defendants, however, argue that Texas v. Biden is distinguishable because the Fifth Circuit based

standing on state expenditures for driver's licenses and that the termination of MPP created

pressure on Texas to change its driver's license laws.153 Defendants9 argument ignores the district

court's findings and conclusions in Texas v. Biden that the plaintiffs in that case had stated a

"legally cognizable" injury based on "increased healthcare cost, education cost, and enforcement

and correctional costs...."154 In affirming the district court, the Fifth Circuit ruled that the district

court's findings were not clearly erroneous and that, apart from expenditures on Texas' driver's

license program, increased healthcare expenditures are a legally cognizable injury.155

Defendants also cite the Fifth Circuit's decision in Crane v. Johnson156 In Crane, the court

rejected a challenge to the government's Deferred Action for Childhood Arrivals ("DACA")

150 ECF No. 13-1 at 13-15.


151 Id.
152 Id.
153 20 F.4th at 969-70.
154 Texas v. Biden, 554 F. Supp. 3d 818 (N.D. Tex. 2021).
155 Texas v. Bi den, 20 F.4th at 969-70. ("It follows that Texas has been actually injured—or at least it faces eminent
injury without the district court's mjunction. Likewise with healthcare costs") (emphasis added)
156 783 F.3d 244 (5fh Cir. 2015).

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program. Mississippi argued that, as here, the "beneficiaries ofDACA who remain in the state will

cost the state money in education, healthcare, enforcement, and lost tax revenue."157 There, the

court mled that Mississippi's "alleged fiscal injury was purely speculative because there was no

concrete evidence that Mississippi's costs had increased or will increase as a result ofDACA."158

However, as noted by the Fifth Circuit in Texas v. Biden, Mississippi's sole evidence of injury

was a nine-year old study "conducted by the state estimating the "net of fiscal burden of illegal

immigration as a whole" at twenty-five million dollars per year.159 The Crane court concluded that

this data on illegal immigration as a whole failed to show that the fiscal burden to the state would

be similarly affected by DACA.160

Here, as in Texas v. Biden, the Plaintiff States have come forward with evidence that the

Termination Order is likely to result in a significant increase in border crossings, that this increase

will impact their healthcare systems, and that they will incur higher costs for healthcare

reimbursements. Accordingly, the present case is distinguishable from Crane for the same reasons

that the Fifth Circuit found that Texas v. Biden was disguisable from Crane. Applying the holding

of Texas v. Biden here, the Plaintiff States have shown a legally cognizable injury at least with

respect to healthcare costs and the Plaintiff States9 legal obligation to subsidize healthcare for

illegal immigrants.

3. Are the Plaintiff States9 Injuries Fairly "Traceable" to the Challenged Agency
Action?

Defendants next argue that, even if Plaintiff States can show a legally cognizable injury,

they cannot trace that injury to the Termination Order. "Traceability" for Article III standing must

157 Id. at 249.


158 Mat 251.
159 Texas v. Biden, 20 F.4th at 971 (citing Crane, 783 F.3d at 249).
160 Crane, 783 F.3d at 251.

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be satisfied by evidence that the plaintiffs injury is "connect[ed] with the conduct about which he

complains."161 In other words, Article III standing "requires a causal connection between the

plaintiffs injury and the defendant's challenged conduct/'162 That causation showing, however, is

not the more demanding requirement for showing "proximate cause."163 Rather, an indirect causal

relationship is sufficient provided that "there is a fairly traceable connection between the alleged

injury in fact and the alleged conduct of the defendant."164 Here, the Plaintiff States rely on

evidence that the Termination Order will increase border crossings, and that this increase will

result in additional expenditures with respect to law enforcement, as well as health and education

services.

The Court first addresses the question of law enforcement expenditoes and the strain

caused by increased border crossings on state law enforcement and corrections. The Court

concludes that the record does not support traceability with respect to these harms. The record

includes anecdotal evidence of the impact of illegal immigration on law enforcement as well as

dmg crimes.165 Here, the increase in daily border crossings predicted by the government as a result

of the Termination Order may lead to some of the criminal activity cited by the Plaintiff States.

That link—that increased border crossings will equate to an increase in crime—is not supported

by the anecdotal evidence in the record. Nor does the record support a link between the termination

of Title 42 and an increase in dmg or human trafficking. Any such link is tenuous and speculative

based on the current record. Again, the Plaintiff States may be able to "connect the dots" and

161 Glen v. American Airlines, Inc., 7 F.4th 331, 335 (5th Cu-. 2021) (quoting Trump v. Hawaii, _ U.S. _, 138 S.
0.2392,2416(2018).
162 Inclusive Communities Project, Inc. v. Department of Treasury, 946 F.3d 649, 655 (5th Cir. 2019).
163 Bennett v. Spear, 520 U.S. 154, 169 (1997) (Tracing an injury for purpose of Article III standing is not the same
as establishing "proximate" cause).
164 Vermont Agency of Natural Resources v. U.S. Ex Rel. Stevens, 529 U.S. 765, 771 (2000).
165 See, e.g., 13-1 at 13-14 (Arguing that increased border crossing would lead to "increased drug trafficking" and law
enforcement costs related to the apprehension of "dangerous criminal aliens").

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establish such a link at a trial on the merits based on admissible evidence. But they have not done

so based on the current record.

The Plaintiff States5 reliance on increased expenditures for healthcare and educational

services presents a different case. The record supports the Plaintiff States' argument that the

Termination Order will cause a significant increase in border crossings—a possible three-fold

increase according to the government's own predictions—and that this increase in border crossings

will increase the fiscal burden of providing required healthcare and educational services for those

immigrants. In Texas v. Biden, the Fifth Circuit addressed traceability with respect to an increase

in immigration "parolees" as a result of the termination ofMPP.166 The court assessed this increase

and its effect on Texas9 driver's license expenditures.167 Because Texas law allows immigration

parolees in Texas to apply for and receive driver's licenses, the court concluded that the

termination of MPP (and the resulting increase in immigration parolees) would increase Texas'

cost to administer that program.168 The court also concluded that the plaintiffs could base standing

on the impact to healthcare.

Healthcare reimbursements, however, are not limited to immigration parolees. The

Plaintiff States contend that an increase in border crossing by immigrants (regardless of status)

will result in increased healthcare costs. This link is supported by the record because it is likely

that—just as parolees in Texas were likely to apply for driver's licenses according to the circuit in

Texas v. Biden — immigrants entering the country illegally after the effective date of the

Termination Order will likely require the healthcare and educational services provided by the

Plaintiff States at some point.169 Courts have held that traceability for purposes of standing may

166 20 F.4fh at 970.


167 Id.
168 Id.
169 See, e.g., Trenschel Dec., ECF No. 13.

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be based "on the predictable effect of Government action on the decisions of third parties."170 Here,

the Plaintiff States can similarly rely on the predicted effect of the Termination Order on border

crossings, and that an increase in border crossings on the scale estimated by the government will

likely impact their healthcare and educational expenditures. The Court concludes, therefore, that

the record supports the traceability requirement for standing.

* * *

In sum, the Plaintiff States will ultimately have to establish standing by a preponderance

of the evidence in order to receive final relief on the merits of their claims at trial. At the current

stage, however, for purposes of a preliminary injunction, the Plaintiff States have shown a

substantial likelihood of establishing Article III standing.

B. Zone of Interests.

The Defendants argue that, even if the Plaintiff States can establish Article III standing,

their alleged injuries fall outside the "zone of interests" of the relevant statute. Whether a plaintiff

comes within the "zone of interests" of a statute requires a court "to determine, using traditional

tools of statutory interpretation, whether a legislatively conferred cause of action encompasses a

particular plaintiffs claim."171 The doctrine "ser^e[s] to limit the role of the courts in resolving

public disputes," by asking "whether the constitutional or statitory provision on which the claim

rests properly can be understood as granting persons in the plaintiffs position a right to judicial

relief."172 Even when the Article III standing requirements have been met, a plaintiff still must

"establish that the injury he complains of (his aggrievement, or the adverse effect upon him) falls

170 Texas v. Biden, 20 F. 4Hi at 973 (quoting Department of Commerce v. New York, _ U.S. _, 139 S. Ct. 2551,
2566(2019)).
171 Lexmark Int'lv. Static Control Components, Inc., 572 U.S. 118, 127 (2014).
172 Worth v. Seldin, 422 U.S.490, 500 (1975).

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within the 'zone of interests5 sought to be protected by the statutory provision whose violation

forms the legal basis for his complaint."173

Defendants contend that the injuries alleged by the Plaintiff States fall outside Title 42's

"zone of interests.5 7 They argue that the Plaintiff States' injuries would result solely from the

government's enforcement operations under Title 8 after the effective date of the Termination

Order and not on account of Title 42.175 Defendants argue that, in contrast to Title 8., Title 42

pertains solely to the health effects of communicable diseases—CO VID-19 in the present case.176

This argument is unpersuasive for at least two reasons. First, the Plaintiff States point to the fact

that they have legitimate interests in the health and welfare of their citizens as well as the impact

of the pandemic on their citizens. They argue that decisions by the federal government with respect

to immigration, especially when those decisions are based on the prevention of communicable

diseases under Title 42, directly impact the states9 interest in the health and welfare of their citizens

and the protection of their citizens during a pandemic. The Court agrees. Courts have recognized

that "states have standing to file suit to protect the health and welfare of their citizens."177 Indeed^

the CDC expressly recognized in its prior orders that "the flow of migration directly impacts not

only border communities and regions, but also destination communities and healthcare resources

of both."178

Second, Defendants' argument that Title 42 is solely a public health measure is not entirely

accurate. Title 42 is certainly a public health measure. But, as Defendants acknowledge, it protects

173 Air Courier Conf. of Am. v. Postal Workers Union, AFL-CIO, 498 U.S. 517, 523-24 (1991) (quoting Lujan v. Nat'l
Wildlife Fed'n, 497 U.S. 871, 883 (1990)); see also Bennettv. Spear, 520 U.S. 154, 175-76 (1997).
174 ECFNo.40atl5.16.
175 Id.
176 Id.
177 Texas v. United States, 86 F. Supp. 3d 591, 631 (S.D. Tex.), affd^ 809 F.3d 134 (5th Cir. 2015) (citing
Massachusetts v. EPA).
178 86 Fed. Reg. 42,828, 42,835 (Aug. 5,2021).

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public health by regulating immigration179 Indeed, the Termination Order expressly discusses the

possible immigration-related consequence of terminating the CDC's prior Title 42 Orders.180

Accordingly, even though the CDC's decision to terminate its prior Title 42 Orders was grounded

on public health considerations, it necessarily has consequences as far as immigration. The

Plaintiff States argue that the immigration-related consequences of the Termination Order will

impact them in the form of increased costs for healthcare reimbursements and educational services.

The Court concludes that the record supports this link.

In sum, as recognized by the Fifth Circuit in Texas v. Biden, the zone-of-interest inquiry is

"not especially demanding," and the Plaintiff States do not have to point to "any indication of

congressional purpose to benefit the states" to satisfy the zone-of-interest test.181 Here, the Court

concludes that the Plaintiff States fall within Title 42?s "zone of interests." The statute regulates

immigration (albeit for public health reasons), and the temiination of rules issued pursuant to that

statute impact the Plaintiff States' interests in the health and welfare of their citizens, as well as

state expenditures for healthcare and education.

C. Reviewability

Defendants argue that the CDC's decision to terminate its prior Title 42 orders is not

subject to judicial review. According to Defendants, this decision "is committed to the CDC's

discretion by law."182 Defendants are correct that the APA precludes judicial review of agency

actions when those actions are "committed to agency discretion by law."183 There is also, however,

a "strong" and "well-settled" presumption in favor of judicial review under the APA.184 An agency

179 ECF No. 40 at 40 ("a Title 42... or the termination of such a Title 42 order ahnost always will have immigration
consequences....").
180 ECF No. 1-1 at 28.
181 ^0 F.4th at 975 (quoting Lexmark International, Inc. v. Static Control Components, Inc., 572 U.S. 118, 130 (2014).
182 ECF No. 40 at 16.
183 5 U.S.C. § 701(a)(2).
184 See Texas v. Biden, 20 F.4th at 976.

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can overcome that presumption by showing that (1) the relevant statute precludes review, or (2)

that the agency action is committed to agency discretion by law.185 The text of Title 42 does grant

the CDC discretion in adopting mles that regulate immigration to prevent the spread of

communicable diseases. But that discretion is not unbounded. As the Plaintiff States point out, the

"committed to agency discretion" exception is narrow, and is limited to "those rare circumstances

where the relevant statute is drawn so that a court would have no meaningful standing against

which to judge the agency's exercise of discretion."186 Here, Title 42 provides such "meaningful

standards." Specifically, Title 42 limits the CDC's authority to regulating "communicable"

diseases and, more importantly, requires the CDC to exercise that discretion only when "required

in the interest of public health."187 In sum, as in Texas v. Biden, the Court concludes that

Defendants have not overcome the presumption ofreviewability under the APA.

TV.
SUBSTANTIAL LDCELfflOOD OF SUCCESS

Because the Plaintiff States have satisfied the jurisdictional requirements for bringing this

case—they have Article III standing, they fall within the "zone of interests" of Title 42, and the

CDC's actions are reviewable—the Court now turns to whether the states have demonstrated a

substantial likelihood of success on the merits of their claims. The Plaintiff States assert that the

Termination Order violates the APA's notice-and-comment requirements and that the order is

arbitrary and capricious.

185 Id.
186 Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
187 ECFNo.51.1at 15.

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A. APA9s Rule-Makins ReQuirements.

When an agency issues a "rule,"188 the APA generally requires the agency to provide

"notice of [the] proposed rulemaking," "give interested persons an opportunity to" submit

comments, and "consider and respond to significant comments."189 However, "[n]ot all 'rules5

must be issued through the notice-and-comment process."190 For example, the APA exempts a mle

from undergoing notice-and-comment mlemaking when "the agency for good cause finds ... that

notice and public procedure thereon are impracticable ... or contrary to the public interest."191 It

also exempts a rule that "involve[s] a ... foreign affairs function of the United States."192

Defendants assert that both exceptions apply.

The APA's requirement that a mle undergo the notice-and-comment process is not a mere

technicality. The Supreme Court has stated that the notice-and-comment provisions "were

designed to assure fairness and mature consideration of mles of general application."193 As

explained by the Fifth Circuit,

These provisions afford an opportunity for "the agency promulgating the rule to
educate itself before establishing mles and procedures which have a substantial
impact on those regulated." Texaco, Inc. v. FPC, 412 F.2d 740, 744 (3rd Cir. 1969).
Congress realized that an agency's judgment would be only as good as the
information upon which it drew. It prescribed these procedures to ensure that the
broadest base of information would be provided to the agency by those most
interested and perhaps best infonned on the subject of the rulemaking at hand. See
Shell Oil v. FEA, 574 F.2d 512, 516 (Temp.Emer.Ct.App.l978)."194

Given the importance of these policy considerations, "it is well established that the 'good cause'

exception to notice-and-comment should be 'read narrowly in order to avoid providing agencies

188 ^ "rule" means, inter alia, "an agency statement of general or particular applicability and future effect" that is
"designed to unplement, interpret, or prescribe law or policy." 5 U.S.C. § 551(4).
189 Perez v. Mortgage Bankers Assn, 575 U.S. 92, 96 (2015)(quoting 5 U.S.C. § 553(b), (c)).
190 Id. at 96-97.
191 5 U.S.C. § 553(b)(B).
192 5 U.S.C. § 553(a)(l).
193 NLRB v. Wyman-Gordon Co., 394 U.S. 759, 764, 89 S.Ct. 1426, 1429, 22 L.Ed.2d 709 (1969).
194 Brown Exp., Inc. v. U.S., 607 F.2d 695, 701 (5th Cir. 1979).

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with an 'escape clause' from the requirements Congress prescribed.5"195 In fact, all of the "various

exceptions ... will be narrowly construed and only reluctantly countenanced'9 by federal courts.

As a preliminary matter, certain statements in Defendants' opposition brief and the

administrative record suggest that the CDC did not consider the Termination Order to be a "rule"

subject to the APA's notice-and-comment rulemaking process.197 Defendants, however, do not

appear to advance this argument here. In any event, the Termination Order qualifies as a "rule"

that is subject to the notice-and-comment process absent the "good cause" and "foreign affairs"

exceptions invoked by Defendants. The Termination Order provides that the CDC's prior orders

restricting immigration under Title 42 will terminate and that normal immigration enforcement

operations will resume under Title 8. The Termination Order is thus "an agency statement of

general or particular applicability and future effect designed to implement, interpret, or prescribe

law or policy .. .."198 The Termination Order is not "a matterQ relating to agency management or

personnel/'199 nor is it merely an interpretive rule, a general statement of policy, or a mle of agency

organization, procedure, or practice.200 Since the Termination Order is a mle that would ordinarily

be subject to the APA's notice-and-comment requirement, the Court now addresses whether the

Termination Order falls within one of the exceptions to this process. If it does not, the CDC's

action violates the APA.

195 United States v. Johnson, 632 F.3d 912, 928 (5tihi Cir. 2011) (quoting United States v. Garner, 767 F.2d 104, 120
(5fh Cir. 1985)).
196 Id. at 1045 n.88 (quoting New Jersey v. EPA, 626 F.2d 1038, 1045 (D.C. Cm 1980)); see also Mack Trucks, Inc.
v. EPA, 682 F.3d 87, 93 (D.C. Cir. 2012) (good-cause exception is not an "escape clauseQ" to be "arbitrarily utilized
at the agency's whim").
197 ECF No. 40 at 6; ECF No. 1-1 at 29 (Termination Order) ("This termination, like the preceding Orders issued
under this authority, is not a rule subject to notice and comment under the [APA].") (emphasis added). While
arguing that the Termination Order is not a "rule" within the meanmg of the APA, the CDC also notes in the
Termination Order that "the Office of Information and Regulatory affau-s has determined that this is a major rule as
defined by Subtitle E of the Small Business Regulatory Enforcement Fairness Act of 1996, also known as the
Congressional Review Act."
1985U.S.C.§551(4).
199 5 U.S.C. § 553(a)(2).
200Mat§553(b)(3)(A).

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B. Good Cause.

Defendants argue that the Termination Order was exempt from the notice-and-comment

process under the "good cause" exception. A federal court's "review of [an] agency's legal

conclusion of good cause is de novo^2Ql Here, the Court's review of the CDC's "good cause"

determination is limited to the "basis articulated by the agency itself," and the agency's rationale

must be articulated "at the time of the mlemaking."202 "Post hoc explanations ... are simply an

inadequate basis for the exercise of substantive review of an administrative decision."203 The

CDC's Termination Order provides the following rationale for the "good cause" exception to the

APA's notice-and-comment requirement:

This Termination, like the preceding Orders issued under this authority, is not a mle
subject to notice and comment under the Administrative Procedure Act (APA).
Even if it were, notice and comment are not required because there is good cause
to dispense with prior public notice and the opportunity to comment on this
Termination. Given the extraordinary nature of an order under Section 265, the
resultant restrictions on application for asylum and other immigration processes
under Title 8, and the statutory and regulatory requirement that an CDC order under
the authority last no longer than necessary to protect public health, it would be
impracticable and contrary to the public interest and immigration laws that apply
in the absence of an order under 42 U.S.C. § 265 to delay the effective date of this
termination beyond May 23, 2022 for the reasons outlined herein. As explained,
DHS requires time to institute operational plans to implement this order, including
CO VID-19 mitigation measures, and begin regular immigration processing
pursuant to Title 8. In light of the August Order's significant disruption of ordinary
immigration processing and DHS's need for time to implement an orderly and safe
termination of the order, there is good cause not to delay issuing this termination or
to delay the tennination of this order past May 23, 2022.204

The Court must therefore consider whether the reasons stated satisfy the requirement of "good

cause." As stated above., the "good cause" exception in 5 U.S.C. § 553 is read narrowly in order to

avoid providing agencies with an escape clause from the APA notice-and-comment

201 Sorenson Commc'nslnc. v. FCC, 755 F.3d 702, 706 (D.C. Cir. 2014).
202 Johnson, 632 F.3d at 928 (quoting United States v. Garner, 767 F.2d 104,117 (5th Cir. 1985)).
203 Id.
204 87 Fed. Reg. 19,941 (Apr. 6, 2022).

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requirements.205 The circumstances justifying reliance on this exception are "indeed rare."206 The

"good cause" exception was described by one court as "meticulous and demanding/' "narrowly

construed," "reluctantly countenanced," and evoked only in "emergency situations."207 Based

upon this stringent standard, the "good cause" exception is rarely upheld.208

The CDC's rationale for invoking the "good cause" exception is flawed for at least four

reasons. First, the CDC's rationale suggests that the CDC had insufficient time to undergo the

APA's notice-and-comment process—in other words that the need to terminate the orders was so

urgent that it could not hew to the requirements of the APA. This rationale ignores the fact that the

CDC was ordered to consider the need to continue its Title 42 orders by Executive Order over

fourteen (14) months prior to issuing the Termination Order.209 As the Plaintiff States point out,

this fourteen-month period provided the CDC with ample time to review its Title 42 orders and,

upon deciding that they should be terminated, to undergo the normal notice-and-comment process

mandated by the APA.

Second, the CDC's stated rationale for the "good cause" exception is internally

inconsistent. While the CDC refers to the need for swift action given "the extraordinary nature of

an order under Section 265 [of Title 42]," the CDC also states that "DHS requires time to institute

operational plans to implement this order..."210 This rationale recognizes that a Title 42

termination will impact DHS's immigration enforcement operations and that DHS will need to

"institute operational plans" to prepare for a termination.211 In this respect, the CDC's rationale

actually supports subjecting the mle to the notice-and-comment process because such a process

205 United States v. Johnson, 632 F.3d 912 (5fh Cir. 2011).
206 Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573 (D.C. Cir. 1981).
207 Sorenson Commc'ns Inc. v. F.C.C., 755 F.3d 702 (D.C. Cir. 2014).
208 See Louisiana v. Becerra, 2022 WL 16571 (W.D. La. 1/1/22) (collecting cases).
209 86 Fed. Reg. 8,267 (Feb. 5, 2021).
210 87 Fed. Reg. 19,941.
211 Id.

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would provide the CDC with the opportunity to "educate itself9 before adopting a mle that will

have a substantial impact on DHS's immigration enforcement operations and the Plaintiff States.

Third, the CDC's stated rationale is overbroad in that it would apply to all rules issued

under Title 42 regardless of the circumstances. Specifically, the CDC states that the "good cause"

exception applies to the Termination Order because the COVID-related orders issued under Title

42 are "extraordinary." Given that Section 265 of Title 42 essentially allows the CDC to supplant

normal immigration operations under Title 85 any order issued under Section 265 of Title 42 is

arguably "extraordinary/9 and, hence, exempt from the APA's notice-and-comment rulemaking

process. Nothing in Section 265 of Title 42 indicates that Congress intended to exempt any and all

actions under that provision from the normal mlemaking process. Indeed, the extraordinary nature

of the CDC's Title 42 orders argue against a wholesale exemption of actions under Title 42 from

the normal rulemaking process.

Fourth, the CDC's stated rationale appears to rely on the same rationale used to implement

the original Title 42 orders issued near the onset of the CO VID-19 pandemic. The Plaintiff States

argue that the rationale for the "good cause" exemption based on circumstances that may have

existed near the beginning of the paademic does not apply now, when the CDC is determining

whether to resume normal operations given the current state of the pandemic.212 An agency's

response to a dangerous and largely unknown contagious disease may justify emergency action

that dispenses with the normal rulemaking process.213 The same emergency conditions do not

exist—or at least the CDC has not explained how such emergency conditions exist—with respect

to terminating Its COVID-related orders based on improving conditions and allowing DHS to

resume normal operations under Title 8. Simply put, the CDC has not explained how the present

212 ECF No. 13 at 21-22.


213 Chambless Enter.. LLCv. Redfield, 508 F.Supp.Sd 101, 119 (W.D. La. 2020)

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circumstances prevented the CDC from issuing the Termination Order through the required notice

and comment process under the APA.

Accordingly, the Court concludes that the Termination Order is not exempt from the APA's

notice-and-comment process based on the "good cause" exception.

C. Foreign Relations Exception.

Defendants next seek to invoke the foreign affairs exception to the notice-and-comment

requirement, arguing that the order involves "a military or foreign affairs function of the United

States."214 As with other exceptions to the notice-and-comment requirements, the foreign affairs

exception "must be narrowly construed."215 The parties here propose two different tests for when

the foreign affairs exception should apply based on a circuit split.216 Plaintiff States argue that the

Court should apply the foreign affairs exception only where "the public rulemaking provisions

[will] provoke definitely undesirable consequences."217 Under this test, the exception would apply

only "where the international consequence is obvious or the Government has explained the need

for immediate implementation of a final rule."218 In contrast. Defendants argue that this test "is

unmoored from the legislative text"219 and that the appropriate test for this exception is whether

the action "relates directly to, and has clear consequences for, foreign affairs."220 In City of New

York, which discusses this second test, the Second Circuit also noted that where a matter does not

"clearly and directly involve a foreign affairs function," the court should conduct a case-by-case

214 5 U.S.C. §553(a)(l).


215 Texas v. United States, 809 F.3d 134, 171 (5th Cir. 2015) (quoting Professionals and Patients for Customized
Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)).
216 The Fifth Circuit has no case law providing a clear defmition of when the foreign affairs exception should apply.
217 East Bay Sanctuary Covenant v. Trump, 932 F.3d742, 776 (9th Cu-. 2018) (quoting Yassiniv. Crosland, 618 F.2d
1356, 1360 n.4 (9th Cir. 1980)).
218 East Bay, 932 F3d at 776.
219 Capital Area Immigrants' Rights Coalition v. Trump, 471 F.Supp.3d25, 53 (D.D.C. 2020)
220 City of New Yorkv. Permanent Mission of India to United Nations, 618 F.3d 172, 201 (2d Cir. 2010).

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analysis determining whether "definitely undesirable international consequences" would result.221

This need for a case-by-case analysis was especially important regarding issues of immigration

because "it would be problematic if incidental foreign affairs effects eliminated public

participation in this entire area of administrative law."222

Ultimately, the Court finds that the foreign affairs exception would not apply to the

Termination Order regardless of which test is used. In seeking to invoke the foreign affairs

exception, the Termination Order includes only one sentence and states that it "concerns ongoing

discussions with Canada, Mexico, and other countries regarding immigration and how best to

control CO VID-19 transmission over shared borders." Defendants have now submitted two

declarations to expand upon the foreign affairs implications of the Termination Order. However,

as the Supreme Court has cautioned, it is a "foundational principle of administrative law" that

judicial review of agency action is limited to "the grounds that the agency invoked when it took

the action."224 Accordingly, the declarations submitted by Defendants must be "viewed only as

impermissible post hoc rationalizations and thus are not properly before us."225 The Court is

limited to the reasons stated in the Termination Order to determine whether the foreign affairs

exception applies. The cursory information included in the Termination Order is simply

insufficient to satisfy the requirements of either of the proposed tests.

D. Arbitrary and Capricious.

The Plaintiff States also argue that the Termination Order is arbitrary and capricious. They

assert that the Termination Order is arbitrary and capricious based upon CDC's failure to consider

221 Id. at 202 (quotations omitted).


222 Id.
223 87 Fed. Reg. 19941-01, 2022 WL 1016059 (Apr. 06, 2022).
224 Department of Homeland Security v. Regents of the University of California, 140 S. Ct. 1891, 1907 (2020), citing
Michigan v. EPA, 576 U.S. 743, 758,135 S. Ct. 2699 (2015).
225 Id.at 1909.

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(1) the financial harms to the states and other reliance interests; and (2) the immigration

consequences of the Termination Order.

The arbitrary and capricious standard under the APA is "narrow and highly deferential."226

In reviewing an agency's explanation, a court is to consider "whether the decision was based on a

consideration of the relevant factors and whether there has been a clear error of judgment."227 The

"court's task is merely to ask whether the agency considered the relevant facts and articulated a

satisfactory explanation for its decision."228 The Supreme Court has stated that '<'[n]ormally, an

agency mle would be arbitrary and capricious if the agency has relied on factors which Congress

has not intended it to consider, entirely failed to consider an important aspect of the problem,

offered an explanation for its decision that runs counter to the evidence before the agency, or is so

implausible that it could not be ascribed to a difference in view or the product of agency

expertise."229 Further, "a court is not to substitute its judgment for that of the agency," and must

"uphold a decision of less than ideal clarity if the agency's path may reasonably be discerned.99230

Because the Plaintiff States have established a substantial likelihood of success on the

merits of their APA notice-and-comment claim, they have satisfied the first requirement for a

preliminary injunction; the Court need not, at this time, address the Plaintiff States' arbitrary and

capricious claim before addressing the remaining requirements for mjunctiye relief. The Court,

however, will briefly address several of the questions raised by the Plaintiff States as to whether

the CDC's actions are arbitrary and capricious. The Plaintiff States contend that the Termination

Order is arbitrary and capricious because the CDC failed to "consider financial harms to the states

226 Sierra Club v. U.S. Dep 't of Interior, 990 F.3d 909, 913 (5fh Cir. 2021).
227 Motor Vehicle Mfrs. Ass )n ofU.S., Inc. v. State Farm Mut Auto. Ins. Co., 463 U.S. 29, 43 (1983).
228 Amin v. Mayorkas, 24 F.4fh 383, 393 (5th Cir. 2022).
229 State Farm, 463 U.S. at 43.
230 State Farm, 463 U.S. at 43 (quoting Bowman Transp., Inc, v. Ark.-Best Freight Sys. Inc., 419 U.S.281,286(1974))

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in terminating its prior COVID-19 orders under Title 42."231 The Plaintiff States also argue that

the CDG failed to consider the immigration consequences of its order.232 Based on the Court's

review of the Termination Order and the administrative record, it appears that CDC did review

some aspects of the immigration impact of resuming normal operations under Title 42 as well as

how that transition might impact local communities within the Plaintiff States. Defendants also

argue in their opposition brief that the CDC considered how the Termination Order would impact

the reliance interests of the states.233 The problem with this argument is that the CDC did not have

the benefit of additional information and input with respect to the reliance interests claimed by

Plaintiff States because it did not promulgate the Termination Notice through the APA's required

notice-and-comment process.

Furthermore, it does not appear from the record that the CDC considered alternatives to a

blanket order that simply terminates its prior Title 42 orders. Texas v. Biden illustrates this point.

There, DHS considered the possibility of either retaining MPP or simply terminating MPP and

elected to terminate MPP. The Fifth Circuit observed that DHS's decision was arbitrary and

capricious because "DHS was required to consider not just the binary decision to keep or reject

MPP, but also 'the alternatives that [were] within the ambit of MPP."234 Here, Title 42 does not

cabin the CDC's options under the statute to a binary decision to either keep or terminate its Title

42 COVID-related orders. Consideration of the alternatives may ultimately lead the CDC to

determine that a termination of its Title 42 orders is the correct course. However, the CDC must,

consistent with Texas v. Biden, consider the alternatives.

231 ECF NO. 13-1 at 27-28.


232 Id. at 33-34.
233 ECFNo.40at35.38.
23420F.4that992.

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In sum, the Court finds that the Plaintiff States have established a substantial likelihood of

success based on the CDC's failure to comply with the mlemaking requirements of the APA. This

finding is sufficient to satisfy the first requirement for injunctive relief. Accordingly., the Court

will not, at this time, make a finding as to whether the CDC's action was arbitrary and capricious.

V.
THE REMAIMNG REQUIREMENTS FOR INJUNCTFVE RELIEF

A. Immediate and Irreparable Harm.

Defendants next argue that the Plaintiff States have not shown that they will be

immediately and irreparably injured if the Termination Order goes into effect. To obtain injunctive

relief, the Plaintiff States must establish "a significant threat of injury from the impending action,

that the injury is imminent, and that money damages would not fully repair the harm."235 Evidence

of "speculative injury" is not sufficient; there must be more than an unfounded fear on the part of

the applicant."236 The Court concludes that the Plaintiff States have met this burden. The record

reflects that—based on the government's own predictions—that the Termination Order will result

in an increase in daily border crossings and that this increase could be as large as a three-fold

increase to 18,000 daily border crossings. Moreover, the CDC's own Termination Order

acknowledges that the order "will lead to an increase in a number ofnon-citizens being processed

in DHS facilities which could result in overcrowding in congregate settings."237 The record also

includes evidence supporting the Plaintiff States' position that such an increase in border crossings

will increase their costs for healthcare reimbursements and education services. These costs are not

235 Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5titi Cir., 1986).
236 Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir, 2011).
237 ECF No. 10-1 at 27.

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recoverable.238 The Plaintiff States thus satisfy the irreparable harm requirement for a preliminary

injunction.

B. Balance of Harms.

Defendants next argue that consideration of the "balance of harms" weighs against a

preliminary injunction. Specifically, they argue that an injunction "would unduly interfere with

the judgment of the Nation's chief public health expert that a Title 42 order is no longer warranted

giving the public health circumstances."239 They argue that an injunction would "require the

Executive Branch to adopt an extraordinarily restrictive public health order, despite the Executive

Branch's considered judgment that the order is no longer warranted."2 ° Defendants5 argument is

correct to the extent that the CDC's Title 42 Orders indisputably impact the operation of the

immigration system under Title 8. This argument, however, is just one side of the "balance of

harms" that the Court must consider. The Plaintiff States have demonstrated harm that will result

from the Termination Order and that, despite the impact of the order on the states, they were not

able to protect their interest by participating in the notice-and-comment process mandated by the

APA. On the other hand, the impact of the CDC's Title 42 Orders on immigration are ameliorated

by certain exceptions and "safety valves" in those orders. The CDC's Title 42 Orders grant DHS

discretion to except non-citizens from the impact of the orders on a case-by-case basis.241 These

exceptions can be triggered by "consideration of significant law enforcement, officer and public

safety, humanitarian and public health interests."242 Defendants concede that these exceptions have

238 Texas v. Biden, 20 F.4th at 1002 (The same costs to the plaintiffs that supported standing also constitute irreputable
injury not adequately remedied by damages" because "they will be unable to recover those additional cost from the
Federal Government.").
239 ECF NO. 40 at 43.
240 Mat 44.
241 ECF No. 24-1.
242 ECF No. 27-1 at If 3.

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been employed throughout the period that the CDC's Title 42 Orders have been in place.2 3

Considering the record as a whole, the Court concludes that the balance of harms weighs in favor

of issuing a preliminary injunction.

C. The Public Interest.

Finally., the Court concludes that injunctive relief would serve the public interest.

Defendants' brief argument with respect to this element merely repeats the same arguments they

make with respect to standing, reviewability, and the balance of harms. Given the impact of the

Termination Order on the Plaintiff States and their showing that the CDC did not comply with the

APA, the Court concludes that the public interest would be sen/ed by a preliminary injunction

preventing the termination of the CDC's Title 42 Orders.

VI.
SCOPE OF INJUNCTWE RELIEF

The final matter that the Court must address is the scope ofinjunctive relief. The Plaintiff

States argue that they are entitled to a preliminary injunction that has nation-wide effect. As

recognized by the court in Texas v. United States2^4 an injunction limited just to the Plaintiff States

"would detract from the integrated scheme of regulation created by Congress and there is a

substantially likelihood that a geographically-limited injunction would be ineffective because

[immigrants] would be free to move among states."245 The Defendants do not appear to contest the

entry ofanation-wide preliminary injunction assuming that the Court finds that the Plaintiff States

have satisfied all of the requirements for injunctive relief. However, in an Amicus Brief filed on

behalf of two asylum applicants in Mexico, these asylum applicants argue for an injunction that is

243 ECFNo.27atH.12.
244809F.3datl88.
245 ECF No. 74 at 2.

46
Case 6:22-cv-00885-RRS-CBW Document 90 Filed 05/20/22 Page 47 of 47 PageID #: 3811

limited in scope to the territories of the twenty-four Plaintiff States.246 The Court agrees with the

Plaintiff States that a nation-wide injunction is necessary for complete relief given the ability of

immigrants crossing the border to move freely from one state to another.247 A preliminary

injunction limited to the Plaintiff States will likely do nothing more than shift border crossings

from the Plaintiff States to states not covered by the preliminary injunction. The Court also notes

that the Termination Order outlines the significant operational issues posed by an order that

requires DHS to resume immigration operations under Title 8.248 A piecemeal preliminary

injunction would only further complicate DHS's operations. Accordingly, a nation-wide injunction

would provide the Plaintiff States with complete relief as well as promoting uniformity in

immigration enforcement.

VII.
CONCLUSION

For the reasons stated above, the Court finds that the Plaintiff States have satisfied each of

the requirements for a preliminary injunction under Rule 65 of the Federal Rules of Civil

Procedure. Accordingly, the court GRANTS the Plaintiff States' Motion for a Preliminary

Injunction.
J^
THUS DONE in Chambers on this .day of May, 2022.

ROBERT R^UMMERHAYS
UNITED STATES DISTRICT JUD(

246 ECF No. 88.


247 Texas v. United States, 809 F.3d at 188.
248 ECF No. 1-1 at 28.

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