Professional Documents
Culture Documents
Texas v. Biden Lawsuit
Texas v. Biden Lawsuit
STATE OF TEXAS,
Defendants.
INTRODUCTION
Defendants have abandoned the preexisting protections against the introduction into
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Texas and the United States of aliens infected with the SARS-CoV-2 virus (“COVID-
19” or “COVID”) during a pandemic. In doing so, Defendants have violated the
Immigration and Nationality Act (“INA”), the Public Health Service Act of 1944
aliens who are or might be infected with COVID into the United States,
Defendants’ unlawful actions imperil the public health of Texas and the United
States, and weaken the ability of the economies of Texas and the United States to
recover, through reopening, from the effects of the pandemic. The State of Texas
accordingly asks this Court to declare Defendants’ actions unlawful and enjoin them.
2. Less than six months ago, Defendants issued a Final Rule and a detailed
Order (collectively commonly referred to as the “Title 42” process) through the
Director of the Centers for Disease Control and Prevention (“CDC”) to prevent the
introduction into the United States across the land borders of all aliens potentially
infected with COVID-19 who could end up in a congregate care setting—a rule that,
expelling illegal aliens from the United States shortly after their unlawful entries.
3. Despite taking these significant actions just six months ago—and using
their authority to prevent the introduction of all covered aliens (a term explained
later in this complaint that generally includes any alien likely to end up in a
congregate care setting after violating the immigration laws) into the United States
to the greatest extent possible until January—Defendants have since hastily and
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unlawfully departed from their own rules for large numbers of illegal aliens and
covered aliens into the United States during a pandemic, Defendants have chosen to
take courses of action that have resulted in the release of tens of thousands of aliens
into Texas and the United States. Absent this Court’s intervention, such releases will
or explanation for their actions, or for their departure from the final rule and order
enforce the INA’s backstop, a longstanding federal law requiring the detention of
aliens arriving in the United States who might transmit diseases of public health
significance. Through their failure to act, Defendants have ignored the plain language
of the INA.
the PHSA to prevent the introduction of aliens who might carry COVID-19 into the
United States, and their failure to ensure the detention of those aliens whom they
process under the INA, results in significant harms to Texas and its citizens. More
Texans will be exposed to COVID-19, more Texans will contract COVID-19, more
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Texans will die from COVID-19, and Texas will incur significant costs in terms of
I. THE PARTIES
Constitution of the United States. TEX. CONST. art. I, § 1. Texas has the authority and
responsibility to protect the health, safety, and welfare of its citizens, and to protect
oversees the Centers for Disease Control and Prevention (“CDC”) as a constituent
agency of HHS. CDC conducts specified functions under the PHSA, including
Defendants U.S. Customs and Border Protection (“CBP”) and U.S. Immigration and
constituent agencies enforce the INA, and DHS has a duty to enforce orders issued
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14. Defendant Rochelle Walensky is the Director of CDC. She is sued in her
16. Defendant Troy Miller is the Senior Official Performing the Duties of
17. Defendant Tae Johnson is the Acting Director of ICE. He is sued in his
18. The Court has subject matter jurisdiction pursuant to 28 U.S.C. §§ 1331,
19. The Court may award the requested declaratory and injunctive relief
20. Venue lies in this district pursuant to 28 U.S.C. § 1391(e) because the
State of Texas is a resident of this judicial district, and a substantial part of the events
22. The INA precludes courts from hearing certain claims “on behalf of any
cases, or execute removal orders,” 8 U.S.C. § 1252(g), but that provision does not apply
because Texas is not suing “on behalf of any alien,” id.; see also Texas v. United States,
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III. BACKGROUND
Order Suspending the Right to Introduce Certain Persons From Countries Where a
Quarantinable Communicable Disease Exists, 85 Fed. Reg. 65,806, 65,812 n.38 (Oct.
16, 2020).
direct contact, aerosol transmission, and surface contact with the virus.
27. COVID-19 has wreaked havoc on every facet of life in the United States
28. On March 13, 2020, Texas Governor Greg Abbott first declared a state
of disaster for all counties in Texas based on the COVID-19 pandemic. Texas remains
29. More than 31 million U.S. residents have been infected with COVID-
19—including more than 2.8 million in Texas—and more than 564,000 of them have
died from COVID-related causes—including more than 48,000 in Texas. See Centers
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data-tracker/#datatracker-home (last visited Apr. 20, 2021); Texas Department of
31. By decreasing the demand for energy and tourism, the COVID-19
pandemic has injured the Texas economy and the Southwest border region more than
32. On September 11, 2020, the CDC published a final rule entitled “Control
Public Health Purposes.” 85 Fed. Reg. 56,424 (Sep. 11, 2020) (“Final Rule”). The Final
Rule’s effective date was October 13, 2020. Id. And it is still in effect today.
33. The Final Rule, issued pursuant to the statutory authority provided in
section 362 of the PHSA, 42 U.S.C. § 265, “establishe[d] final regulations under which
the Director [of the CDC] may suspend the right to introduce and prohibit, in whole
or in part, 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
C.F.R. § 71.40).
34. The Final Rule followed a similar CDC interim final rule promulgated
in March 2020, 85 Fed. Reg. 16,559 (Mar. 24, 2020), as well as an initial 30-day order,
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85 Fed. Reg. 17,060 (Mar. 26, 2020), which CDC subsequently extended for another
30 days, 85 Fed. Reg. 22,424 (Apr. 22, 2020), and then amended to cover the duration
of the COVID-19 emergency subject to an internal 30-day review cycle, 85 Fed. Reg.
35. On October 13, 2020, the CDC Director issued an order entitled “Order
Quarantinable Communicable Disease Exists.” 85 Fed. Reg. 65,806–12 (Oct. 13, 2020)
the authority provided in the Final Rule—was the latest in a series of orders issued
under the prior interim final rule and orders, all of which similarly prevented the
36. Collectively, the Final Rule and the October Order work together in a
37. In the October Order, the CDC Director again suspended the
introduction of covered aliens into the United States until the CDC determines that
“the danger of further introduction of COVID-19 into the United States has ceased to
be a serious danger to the public health,” 85 Fed. Reg. at 65,810 (Oct. 16, 2020), based
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in Canada, Mexico, and the other countries of origin of persons
who migrate to the United States across the land borders with
Canada and Mexico;
• But for this suspension-of-entry order under 42 U.S.C. § 265,
covered aliens would be subject to immigration processing at the
land POEs and Border Patrol stations and, during that
processing, many of them (typically aliens who lack valid travel
documents and are therefore inadmissible) would be held in the
congregate areas of the facilities, in close proximity to one
another, for hours or days; and
• Such introduction into congregate settings of persons from
Canada or Mexico would increase the already serious danger to
the public health of the United States to the point of requiring a
temporary suspension of the introduction of covered aliens into
the United States.
Id.
38. The CDC does not, itself, have the personnel, equipment, or facilities to
39. Accordingly, the CDC Director noted his consultation with DHS in
issuing the October Order, stating that he “requested that DHS aid in the
enforcement [of] this Order because CDC does not have the capability, resources, or
personnel needed to do so.” Id. at 65,812. 1 He further stated that “DHS’s assistance
with implementing the Order is necessary, as CDC’s other public health tools are not
viable mechanisms given CDC resource and personnel constraints, the large numbers
of covered aliens involved, and the likelihood that covered aliens do not have homes
1Another provision of the PHSA, 42 U.S.C. § 268, provides that “[i]t shall be the duty
of the customs officers and of Coast Guard officers to aid in the enforcement of
quarantine rules and regulations[.]”
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40. The CDC Director noted that his October Order should apply to all
POEs who lack proper travel documents, aliens whose entry is otherwise contrary to
law, and aliens who are apprehended at or near the border seeking to unlawfully
41. Aside from exceptions not relevant here, the CDC Director specified that
the October Order “does not apply to persons whom customs officers determine, with
public safety, humanitarian, and public health interests.” Id. In these limited
circumstances, the CDC Director specified that “DHS shall consult with CDC
to help ensure consistency with current CDC guidance and public health assessments.”
42. In practice, in enforcing the CDC Director’s October Order, DHS was
able to rapidly expel covered aliens from the United States, thereby preventing their
introduction into the United States and into congregate care settings.
43. The CDC Director noted in his October Order that the prior orders
“reduced the risk of COVID-19 transmission in POEs and Border Patrol Stations, and
thereby reduced risks to DHS personnel and the U.S. health care system.” Id.
44. He further noted that “[t]he public health risks to the DHS workforce—
and the erosion of DHS operational capacity—would have been greater absent the
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March 20, 2020 Order[,]” adding that “DHS data shows that the March 20, 2020
settings in POEs and Border Patrol stations, thereby reducing the risk of COVID-19
transmission for DHS personnel and others within these facilities.” Id.
45. As a result of the use of Title 42, the population of aliens processed under
Title 8 (the ordinarily applicable immigration rules) declined sharply, meaning that
the number of aliens rapidly expelled increased significantly over the last six months
of Fiscal Year 2020. Of the 253,301 total southwest border encounters under Title 8
in Fiscal Year 2020, only 24,372 occurred in the last six months of the year (from
April through September). See U.S. Customs and Border Protection, Southwest
border-encounters (last visited Apr. 20, 2021). During roughly the same six-month
period, 204,787 aliens were rapidly expelled pursuant to Title 42. Id.
injunction in the matter of P.J.E.S. v. Wolf, No. 20-2245 (D.D.C. 2020). Judge Sullivan
held that unaccompanied alien children (UAC) were improperly expelled pursuant to
Title 42, and then enjoined the government from applying Title 42 to UAC
47. Between November 2020 and January 2021, the number of UAC
encountered at the southwest border increased by roughly 27%, rising from 4,600
11
https://www.cbp.gov/newsroom/stats/southwest-land-border-encounters (last visited
48. On January 29, 2021, the United States Court of Appeals for the D.C.
Circuit issued an order staying Judge Sullivan’s injunction. P.J.E.S. v. Pekoske, No.
49. Despite obtaining a stay of Judge Sullivan’s injunction from the D.C.
Circuit and having the ability to apply Title 42 to UAC, the CDC Director
subsequently announced an exception from the October Order for UAC effective
Forthcoming Public Health Determination, 86 Fed. Reg. 9,942 (Feb. 17, 2021) (the
“February Order”).
50. The exception noted that while COVID-19 continued to pose a “highly
dynamic public health emergency,” the CDC was “in the process of reassessing the
overall public health risk at the United States’ borders and its ‘Order Suspending the
Communicable Disease Exists’ based on the most current information regarding the
COVID-19 pandemic as well as the situation at the Nation’s borders.” Id. (emphasis
added). But other than those general statements, the CDC Director provided no
border increased to 9,431 in February (roughly a 105% increase over the number
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encountered in November). See U.S. Customs and Border Protection, Southwest
border-encounters (last visited Apr. 20, 2021). And the number of UAC encountered
in March increased to 18,890 (roughly a 310% increase over the number encountered
in November). Id.
52. Defendants have also departed from their own rules pertaining to its
although in that context not only have they offered no explanation for any change in
processing, but they have also not made any public announcement about a change in
2020, 4,404 in December 2020, 7,296 in January 2021, 19,587 in February 2021, and
53,623 in March 2021. Id. Of those total encounters, 3,639 were processed using Title
(roughly 62%), 9,223 in February (roughly 47%), and 17,345 in March (roughly 32%).
Id. Thus, under Title 8 DHS processed 661 members of family units in November
2020, 1,072 in December 2020, 2,750 in January 2021, 10,364 in February 2021, and
roughly 1,147% between November 2020 and March 2021, yet the use of Title 42 for
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55. Among other things, to accommodate the surge in UAC, HHS has
converted oilfield workers’ camp in Midland. See Joshua Skinner & Kate Porter,
Midland leaders blindsided by arrival of migrants at holding facility, CBS7 (Mar. 14,
2021), https://www.cbs7.com/2021/03/14/gov-abbott-federal-hhs-sending-some-
See Nomaan Merchant & Jake Bleiberg, Immigrant teens to be housed at Dallas
https://apnews.com/article/dallas-health-coronavirus-pandemic-immigration-border-
patrols-fa567f671faa0e9eb33e37f30746f1b6.
56. When not rapidly expelling aliens using Title 42, DHS is directed by the
INA to undertake certain actions when it encounters aliens who could potentially
57. DHS is charged with enforcing the immigration laws pertaining to the
admission of arriving aliens, including 8 C.F.R. Part 235, which governs the
inspection of aliens applying for admission to the United States. In general, aliens
who apply for admission to the United States must present themselves to an
58. Section 212(a)(1)(A) of the INA renders aliens inadmissible if they are
§ 1182(a)(1)(A)(i).
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59. The INA defines a “communicable disease of public health significance”
a country where such diseases are prevalent—section 232(a) of the INA requires the
61. Regulations similarly permit detention of such aliens where there are
“reasonable grounds for believing that persons arriving in the United States should
be detained for reasons specified in section 232 of the Act [8 U.S.C. § 1222].” 8 C.F.R.
62. DHS’s policies and statistics prove that DHS does not meaningfully
enforce the plain requirements of the INA to detain any such aliens for a “sufficient
time to enable the immigration officers and medical officers to subject such aliens to
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observation and an examination sufficient to determine whether or not” they could
support for individuals in CBP custody along the Southwest Border (SWB).” U.S.
Customs and Border Protection, CBP Directive No. 2210-004 at 1 (Dec. 30, 2019),
https://www.cbp.gov/sites/default/files/assets/documents/2019-
64. The Directive “applies to CBP steady-state and surge operation and
includes crisis-level operations,” and states that “it is the policy of CBP that all
applicable authorities, regulations, standards, and policies.” Id. And it states that
individuals will not be detained in CBP facilities for the sole purpose of completing
potential medical issues in persons in custody.” Id. at p. 4. The first phase involves
observing persons in custody and proactively alerting CBP personnel about any
for people with identified medical issues. The second phase involves a health
interview for all individuals in CBP custody under the age of eighteen. And the third
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a medical assessment to be conducted on tender-age children, any person who self-
identified a medical issue during a screening, and “any other person in custody with
66. The Directive makes no mention of detention for individuals under the
circumstances required by 8 U.S.C. § 1222(a). Therefore, combined with the fact that
CBP’s own Directive states that “individuals will not be detained in CBP facilities for
compliance with the requirements of 8 U.S.C. § 1222(a) could only come through
67. And while ICE may have medical policies in place for individuals
transferred to its custody depending upon the nature of the facility itself—see, e.g.,
overwhelming majority of aliens in family units are not being transferred to ICE
custody in the first instance, meaning that CBP is releasing family unit aliens
directly from its custody at the border. Even those few transferred to an ICE Family
Residential Center are being quickly processed and released into the interior of the
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68. ICE publishes data on those aliens brought into its custody, those aliens
it detains, and those aliens it releases. See U.S. Immigration and Customs
69. ICE’s data prove that it is not detaining the overwhelming majority of
members of family units whom CBP encounters at the border and is releasing the few
70. Indeed, Fiscal Year 2021 to date, ICE’s data show that it has only
processed a total of 2,107 aliens into Family Residential Centers. Id. It also shows
that as of March 31, 2021, ICE was only detaining 1,562 aliens in family units in
Family Residential Centers. Id. And the Average Length of Stay was 7.5 days in
71. Comparing ICE’s reported total of 2,107 aliens being processed into a
Family Residential Center so far in Fiscal Year 2021, id., with the 51,651 total aliens
CBP processed under Title 8 (as opposed to immediate expulsion under Title 42), see
Apr. 20, 2021), proves that ICE is also failing to detain the overwhelming majority of
members of family units in accordance with the plain language of 8 U.S.C. § 1222(a).
72. Defendants’ failure to use Title 42, and their failure to follow the INA’s
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diseases of public health significance, results in the release of aliens into Texas—
73. Texas has suffered and continues to suffer irreparable harm because of
Defendants’ actions.
74. In fact, the CDC Director’s October Order acknowledged as much, when
it described that “several cities and states, including several located at or near U.S.
has strained their healthcare and public health systems. Furthermore, continuing to
slow the rate of COVID-19 transmission is critical as states and localities ease public
economic and other costs of the COVID-19 pandemic.” 85 Fed. Reg. 65,812 (emphasis
added).
75. And the harms that Texas experiences will continue to increase as
Defendants not only release more UAC from their custody and place them with
sponsors throughout Texas, but also release family units and a higher percentage of
HHS, Texas consistently receives more UAC than any other state—including 13.59%
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most recent (2020) estimate. See U.S. Census Bureau, 2020 Vintage 2020 Population
surveys/popest/technical-documentation/research/evaluation-estimates.html. (last
77. Because of the lag time in processing UAC, the preliminary injunction
that prevented Defendants’ applying Title 42 to UAC from November 18, 2020,
through the stay of that injunction on January 29, 2021, and Defendants’ refusal to
apply Title 42 since then, this number will exponentially increase in the coming
78. The release of illegal aliens—including UAC, family units, and other
aliens—into Texas exposes Texas residents to COVID-19 and causes Texas to incur
significant costs, including higher healthcare, law enforcement, and education costs.
When Defendants do not remove or exclude illegal aliens in compliance with federal
law, Defendants’ inaction causes Texas to incur these higher costs, which are not
recoverable at law.
79. When DHS and CDC violate the statutory requirements to exclude or
quarantine illegal aliens with communicable diseases such as COVID-19, Texas faces
significant healthcare and related economic costs, Texas citizens face unwarranted
risk, and Texas public-health and law-enforcement officials have their already
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81. The surge in COVID-19-infected aliens arriving illegally in Texas not
only spreads COVID-19 to Texas residents with whom the illegal aliens come into
contact but also infects Defendants’ staff and contractors who come into contact with
COVID-19-infected illegal aliens, and thus further expose their families and
absorbs available healthcare resources that Texas has provided for Texas residents,
exceptions on a case-by-case basis, Texas would not face such an overwhelming crush
of UAC and members of family units who might have COVID-19—at a time when
Texas is trying to reopen for business and ensure the distribution of COVID-19
V. CLAIMS
COUNT I
85. The February Order is arbitrary and capricious because it does not offer
86. The APA provides that reviewing courts “shall . . . hold unlawful and set
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otherwise not in accordance with law.” 5 U.S.C. § 706(2)(A). The February Order,
which amends the October Order and Title 42 process, is a final agency action.
87. The sole rationale given by the February Order is that the “CDC is in
the process of reassessing the overall public health risk at the United States' borders
and its [October Order] based on the most current information regarding the COVID-
the United States Pending Forthcoming Public Health Determination, 86 Fed. Reg.
88. This rationale is unreasonable and runs counter to the evidence before
the agency.
89. The February Order admits that the October Order “was based on the
most current information at that time regarding the COVID-19 pandemic and the
90. The October Order had concluded that suspending the introduction of
UAC was “necessary to continue to protect the public health from an increase in the
serious danger of the introduction [of COVID-19.]” Order Suspending the Right to
91. In the October Order, the CDC Director had stated that the CDC was
conducting monthly reviews of “the latest information regarding the status of the
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COVID-19 pandemic and associate public health risks to ensure that the [October]
92. The evidence before the agency at the time of the February Order
UAC was necessary to protect public health, based on the most current information
available at the time, and approximately four monthly reviews reaffirming the
necessity of that policy in light of the most recent public health data regarding the
COVID-19 pandemic.
93. The February Order does not identify any new information arising after
October 16, 2020, that would provide a well-reasoned explanation for the CDC’s
abrupt departure from the process outlined in the October Order. The rationale that
CDC gives in the February Order—namely, that “CDC is in the process of reassessing
the overall public health risk at the United States’ borders and its [October Order]
based on the most current information regarding the COVID-19 pandemic as well as
the situation at the Nation’s borders” 86 Fed. Reg. at 9,942—is no rationale at all:
“On the contrary, the agency, to engage in informed rulemaking, must consider
varying interpretations and the wisdom of its policy on a continuing basis.” Chevron,
U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 863–64 (1984). If CDC’s “reassessment”
94. Even if there were some ex post facto way to explain or justify CDC’s
decision, that would not save CDC’s action because it “is a foundational principle of
administrative law that judicial review of agency action is limited to the grounds that
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the agency invoked when it took the action.” Dep’t of Homeland Sec. v. Regents of the
Univ. of California, 140 S. Ct. 1891, 1907 (2020) (quotations omitted); SEC v. Chenery
Corp., 318 U.S. 80, 87 (1943) (pre-APA); Motor Vehicle Mfrs. Ass’n v. State Farm
Mutual Auto Ins. Co., 463 U.S. 29, 50 (1983) (limiting APA review to “the basis
articulated by the agency itself” in the record); see also 5 U.S.C. § 553(b)(B) (requiring
COUNT II
96. The February Order is arbitrary and capricious because defendants also
did not consider the State of Texas’s reliance interests in the continuation of the Title
42 policy.
97. Defendants ignored the harms that ceasing to use Title 42 for UAC
would cause, such as increased costs to Texas and other states, which always “bear[]
U.S. 387, 397 (2012). As noted above, the February Order did not address such costs
at all. This failure, too, was arbitrary and capricious. See Michigan v. E.P.A., 576 U.S.
98. Defendants particularly did not consider whether “there was ‘legitimate
reliance’ on the” use of Title 42 for nearly a year—in the middle of a pandemic—that
enabled Texas to devote resources to addressing the needs of its citizens, or to ease
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economically-damaging pandemic-related restrictions on its citizens, thus improving
Texas’s economy and increasing the state’s tax revenues. Dep’t of Homeland Sec. v.
Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020) (quoting Smiley v. Citibank
(South Dakota), N.A., 517 U.S. 735, 742 (1996)). Instead, there was no consideration
whatsoever of the decision’s impact on available state resources. That failure was
arbitrary and capricious; where, as here, “an agency changes course . . . it must ‘be
cognizant that longstanding policies may have engendered serious reliance interest
that must be taken into account.’” Id. (quoting Encino Motorcars, LLC v. Navarro,
COUNT III
100. The February Order is arbitrary and capricious because the Defendants
failed to consider alternative approaches to their decision to except UAC from Title
42 altogether.
101. Even if Defendants considered the costs to Texas—and they did not—
they did not consider whether they could achieve their goals through a less-
would allow at least the use of Title 42 in some cases for UAC, and that would have
25
accordingly imposed less-significant burdens on Texas. The Supreme Court recently
held that a DHS immigration action was arbitrary and capricious because it was
the Univ. of Cal., 140 S. Ct. at 1912 (quoting State Farm, 463 U.S. at 51). The
February Order categorically eliminates the use of Title 42 for all UAC.
103. By omitting any analysis of continuing at least some use of Title 42 for
UAC, Defendants “failed to consider important aspects of the problem” before it. Id.
COUNT IV
105. The February Order is arbitrary and capricious because the Defendants
provided no meaningful explanation or justification for it. See SEC v. Chenery Corp.,
318 U.S. 80, 87 (1943) (“The grounds upon which an administrative order must be
judged are those upon which the record discloses that its action was based.”). Because
Defendants did not provide any grounds for the decision other than that they were
reconsidering the matter, they are precluded from asserting new grounds before this
106. Because Defendants did not sufficiently explain their sudden departure
from the use of Title 42 for UAC, the February Order is “arbitrary, capricious, an
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COUNT V
108. The Defendants failed to conduct the statutorily required notice and
109. The APA provides that reviewing courts “shall . . . hold unlawful and set
rulemaking, 5 U.S.C. § 553(b)–(c), and to have rules take effect 30 or more days after
65,806–12, and the February Order, 86 Fed. Reg. at 9,942—is a substantive rule for
APA purposes because the Title 42 process binds agency discretion. 5 U.S.C. § 551(4)–
(5).
112. CDC previously argued that its orders in the Title 42 process were not
rules, and argued in the alternative that APA exceptions applied, based on the public-
health emergency of the COVID-19 pandemic. See 85 Fed. Reg. at 65,812 (Oct. 16,
113. In the February Order, Defendant CDC purports not only to have
amended the Title 42 process by exempting UAC from the Title 42 process without
27
putting that amendment through notice-and-comment rulemaking, but also to have
114. In the February Order, CDC does not invoke any exceptions to the APA’s
115. CDC’s February Order is not eligible for any exceptions to the APA’s
116. CDC’s February Order violated the APA by purporting to amend the
Title 42 process without either meeting the notice-and-comment rulemaking and 30-
COUNT VI
118. The Defendants act unlawfully by not following their own rules for
119. While the APA prohibits agency actions that are “arbitrary, capricious,
agencies’ obligation to follow their own rules predates APA’s enactment. United
States v. Macdaniel, 32 U.S. (7 Pet.) 1, 15 (1833); FPC v. Nat. Gas Pipeline Co., 315
U.S. 575, 586 (1942); Service v. Dulles, 354 U.S. 363, 372 (1957) (citing Accardi v.
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120. As opposed to Defendants’ exception of UAC from coverage under Title
42 in the February Order, Defendants have made no such comparable exception for
members of family units. Yet Defendants’ own statistics prove that they are not acting
in accordance with their own rules, which require DHS to consult with CDC
to help ensure consistency with current CDC guidance and public health assessments.”
See 85 Fed. Reg. 65,806, 65,807–08 (Oct. 16, 2020) (emphasis added).
exceptions are neither case-by-case nor individualized when such exceptions applied
123. And further, because Defendants’ attempt to except UAC from Title 42’s
coverage was ineffective and unlawful for the reasons stated above, their present
COUNT VII
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125. The Defendants have failed to comply with applicable law requiring the
federal district courts to “declare the rights and other legal relations of any interested
party seeking such declaration, whether or not further relief is or could be sought.”
28 U.S.C. § 2201(a).
129. DHS has a statutory obligation to detain and quarantine aliens arriving
from Mexico before releasing such aliens into the United States.
that is at least the period necessary to determine whether someone has COVID-19
131. DHS’s refusal to enforce 8 U.S.C. § 1222(a) is final agency action within
the meaning of the APA, both as reviewable inaction and as a conscious policy of non-
enforcement.
132. Unless aliens arriving from Mexico are immediately returned to Mexico
on the DHS Defendants to detain aliens arriving from Mexico who are inadmissible.
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COUNT VIII
134. The Defendants have failed to take care that the laws applicable to the
135. The Constitution requires the President to “take care that the Laws be
exercising executive power. See U.S. CONST. art. II, § 1, cl. 1 (vesting “[t]he executive
5 U.S.C. § 706.
138. Defendants’ actions here violate the Take Care Clause because they
refuse to apply CDC’s duly promulgated rules under the PHSA and refuse to enforce
139. Defendants’ actions thus violate the constitutional duty to “take Care
enjoined under the APA, 5 U.S.C. §706, or independent of the APA under the Take
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VI. PRAYER FOR RELIEF
enjoining Defendants from enforcing the February Order promulgated at 86 Fed. Reg.
9,942 (Feb. 17, 2021), and order Defendants to continue to apply the rules in place on
January 19, 2021 to all covered aliens until Defendants amend such rules pursuant
APA and the Take Care Clause either to (i) return all covered aliens to Mexico under
Title 42 or (ii) detain and quarantine under 8 U.S.C. § 1222(a) all aliens who could
carry a communicable disease of public health significance for at least fourteen days
under the APA and the Take Care Clause enjoining Defendants from not applying
Title 42 to all covered aliens until Defendants amend such rules pursuant to the APA;
under the APA and the Take Care Clause enjoining Defendants from failing to detain,
quarantine, and test under 8 U.S.C. § 1222(a) all aliens arriving who could carry a
32
communicable disease of public health significance before releasing them into the
United States;
fees; and
g. Award such other and further relief as the Court deems equitable
and just.
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Respectfully submitted on April 22, 2021,
34