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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,
I.
FINDINGS OF FACT
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
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
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
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
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
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
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
13 Id.
14 Declaration of Bias Nunez-Neto, ^ 6, Exhibit A to ECF No.27.
157(/.at1fl8.
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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
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
unaccompanied alien children ("UAC").18 The March 2022 Order found that suspending entry
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
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
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
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
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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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
19. On April 14, 2022, a First Amended Complaint29 was filed to include an additional
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
7
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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.
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
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,
in the coming months, which could lead to further crowding in DHS facilities."40
8
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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
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
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
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
9
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directly impacts not only border communities and regions, but also destination communities
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
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
10
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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
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
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
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.
11
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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
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.
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-
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^\\.
12
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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
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
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.
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.
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
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
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
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
14
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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.
15
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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.
16
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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.
17
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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
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.)
18
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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).
19
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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
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.
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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
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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
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
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
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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
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.
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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
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
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
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
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.
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
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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
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
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")
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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
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
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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
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
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
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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
* * *
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
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
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
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
Accordingly, even though the CDC's decision to terminate its prior Title 42 Orders was grounded
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.
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
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
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
185 Id.
186 Lincoln v. Vigil, 508 U.S. 182, 191 (1993).
187 ECFNo.51.1at 15.
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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
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
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'
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.
administrative record suggest that the CDC did not consider the Termination Order to be a "rule"
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
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
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
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
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
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
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circumstances prevented the CDC from issuing the Termination Order through the required notice
Accordingly, the Court concludes that the Termination Order is not exempt from the APA's
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
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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
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
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
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(1) the financial harms to the states and other reliance interests; and (2) the immigration
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,
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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
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
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
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
[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.
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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(
47