State of Texas v. Biden

UNITED STATES DISTRICT COURT

FOR THE NORTHERN DISTRICT OF TEXAS

FORT WORTH DIVISION

STATE OF TEXAS,

Plaintiff,

v. No. 4:21-cv-0579-P

JOSEPH R. BIDEN, JR., IN HIS OFFICIAL

CAPACITY AS PRESIDENT OF THE UNITED

STATES OF AMERICA, ET AL.,

Defendants.

MEMORANDUM OPINION & ORDER

The Court is not blind to the current political division in this country.

Or that the division often implicates matters of federalism. Despite the

division and the scorched-earth politics, the Court is baffled at this

proceeding’s adversarial nature. That is, while a border state (like

Texas) and the federal government may genuinely disagree whether

various federal agencies are compliant with federal immigration law or

what our immigration policy should be, there should be no disagreement

that the current immigration policies should be focused on stopping the

spread of COVID-19. Why a state and the federal government are

litigating this issue—instead of working to solve it—is simply beyond

the comprehension of the undersigned.1

1It is certainly not unusual (or seen as a sign of weakness) in our country’s history

for governors of border states and presidents from different political parties to work

directly together on problems and issues along our border. Afterall, the goal of every

governor or president ought to be what is best for the American people, despite their

respective political parties. See, e.g., SAM KINCH & STUART LONG, ALLAN SHIVERS: THE

PIED PIPER OF TEXAS POLITICS 142–46 (1973) (discussing negotiations between

Democratic Governor of Texas Allan Shivers, Republican President Dwight D.

Eisenhower, and President Ruiz Cortines of Mexico to build a dam for flood control on

the Lower Rio Grande River). Or, as President Lyndon B., Johnson was fond of saying:

“Come now, and let us reason together.” See Lyndon Baines Johnson, in JOHN

BARTLETT, FAMILIAR QUOTATIONS 872 (15th ed., 1980) (quoting Isaiah 1:18 (NKJV)).

Before the Court is Plaintiff State of Texas’s Motion for Preliminary

Injunction (ECF No. 67); the Consolidated Response and Motion to

Dismiss (ECF No. 76) filed by Defendants2 Joseph R. Biden, Jr. in his

official capacity as President of the United States of America; U.S.

Department of Health & Human Services; Centers for Disease Control

& Prevention; U.S. Department of Homeland Security; United States

Customs & Border Protection; U.S. Immigration & Customs

Enforcement; Xavier Becerra, Secretary of Health & Human Services,

in their official capacity; Rochelle Walensky, Director Center for Disease

Control & Prevention, in their official capacity; Alejandro Mayorkas,

Secretary U.S. Department of Homeland Security, in their official

capacity; Troy Miller Senior Official Performing the Duties of the

Commissioner, U.S. Customers & Border Protection, in their official

capacity; and Tae Johnson, Acting Director, U.S. Immigration &

Customs Enforcement, in their official capacity; Plaintiff’s Consolidated

Response and Reply in Support of its Motion for Preliminary Injunction

(ECF No. 89); and the Government’s Reply in Support of its Motion to

Dismiss (ECF No. 93). Having considered the supporting briefs and

appendices, as well as the Briefs of Amici Curiae3 (ECF Nos. 75, 84), and

the applicable law, the Court concludes that the Motion to Dismiss will

be DENIED in part and GRANTED in part and that the Renewed

Motion for Preliminary Injunction will be GRANTED in part.

BACKGROUND

A. COVID-19 is loosed on the world and United States.

COVID-19 is a quarantinable, communicable respiratory disease

caused by the SARS-CoV-2 virus, 86 Fed. Reg. 42,828, 42,830 (Aug. 5,

2021), that “began in the city of Wuhan in the Hubei Province of the

2Defendants will also be referred to collectively as “the Government” throughout.

3Plaintiff Robert A. Heghmann filed a Motion to Intervene. ECF No. 55. To

intervene by right, the prospective intervenor must satisfy the four requirements of

Rule 24(a)(2). Here, the Plaintiff argues that because this Court’s decision could be

reversed on appeal, Texas cannot adequately represent the Plaintiff’s “personal

interest in terminating illegal immigration across the Southern Border.” Id. at 7.

Although Plaintiff’s burden is minimal, a hypothetical result based on a hypothetical

appeal does not establish that the Plaintiff might be inadequately represented by

Texas. See Trbovich v. United Mine Works of Am., 404 U.S. 528, 538 n.10 (1972). The

Court therefore DENIES Plaintiff’s Motion to Intervene (ECF No. 55).

People’s Republic of China.” 85 Fed. Reg. 56,428 (Sept. 11, 2020). Since

its emergence in late 2019, COVID-19 “has spread throughout the world,

resulting in a pandemic.” Id. The World Health Organization (“WHO”)

first classified COVID-19 as a pandemic on March 11, 2020. Id.

COVID-19 has fundamentally altered life in the United States, with

governments banning church gatherings, closing businesses, and forcing

children to attend school on a screen or with a mask. Since early 2020,

there have been more than 66 million COVID-19 cases, including more

than 5.5 million in Texas. Over 850,000 U.S. residents have died from

COVID-related causes, more than 76,000 of them in Texas.4

B. The CDC’s actions to prevent the entry of COVID-19-positive

aliens eventually culminated in the October 2020 Order.

Approximately two weeks after being classified as a pandemic by the

WHO, the CDC promulgated an interim rule, 85 Fed. Reg. 16,559

(Mar. 24, 2020), as well as an initial 30-day order. 85 Fed. Reg. 17,060

(Mar. 26, 2020). The order’s purpose was to “protect the public health

from an increase in the serious danger of the introduction of Coronavirus

Disease 2019 (COVID-19) into the land [ports of entry (POEs)], and the

Border Patrol stations between POEs, at or near the United States

borders with Canada and Mexico.” 85 Fed. Reg. at 17,061. The order

aimed to advance “the movement of all . . . aliens [covered by the order]

to the country from which they entered the United States, or their

country of origin . . . as rapidly as possible, with as little time spent in

congregate settings as practicable under the circumstances.” Id. at

17,067. The CDC extended the March order for an additional 30 days,

85 Fed. Reg. 22,424 (Apr. 22, 2020), and then amended it to cover the

duration of the COVID-19 disaster, subject to internal 30-day review

cycle, 85 Fed. Reg. 31,503, 31,507–08 (May 26, 2020).

On October 13, 2020, the CDC Director issued an order (“October

2020 Order”) entitled, “Order Suspending the Right to Introduce Certain

Persons Where a Quarantinable Communicable Disease Exists.” 85 Fed.

4See COVID Data Tracker, CTRS. FOR DISEASE CONTROL & PREVENTION,

https://covid.cdc.gov/covid-data-tracker (last visited Jan. 18, 2021); DSHS COVID-19

Dashboard, TEX. DEPT. OF STATE HEALTH SERVS., https://dshs.texas.gov/coronavirus/

cases.aspx (last visited Jan. 18, 2021).

Reg. 65,806–12 (Oct. 16, 2020); ECF No. 69 at 4–10.5 The October 2020

Order was based on findings that:

• COVID-19 is a communicable disease that poses a danger to the

public health;

• COVD-19 is present in numerous foreign countries, including

Canada and Mexico;

• There is a serious danger of the introduction of COVID-19 into

the land-based POEs and Border Patrol stations at or near the

United States borders with Canada and Mexico, and into the

interior of the country as a whole, because COVID-19 exists in

Canada, Mexico, and other countries of origin of persons who

migrate to the United States across its North and South borders;

• But for a suspension-of-entry order under 42 U.S.C. § 265, covered

aliens would be subject to immigration processing at the land

ports of entry 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, near 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.

85 Fed. Reg. at 65,810; ECF No. 69 at 8.

Because the CDC does not have the personnel, equipment, or

facilities to enforce the October 2020 Order, the CDC Director consulted

with DHS and other federal departments and “requested that DHS aid

in the enforcement of this Order.” 85 Fed. Reg. at 65,812; ECF No. 69 at

10. By its own terms, the October 2020 Order applied, inter alia, to all

“covered aliens,” which were defined (with the aid of DHS) as “aliens

seeking to enter the United States at POEs who do not have proper

travel documents, aliens whose entry is otherwise contrary to law, and

aliens who are apprehended at or near the border seeking to unlawfully

enter the United States between POEs.” 85 Fed. Reg. at 65,807; ECF

5By its own terms, the October 2020 Order states that it is “substantially the same”

as the interim orders. See 85 Fed. Reg. at 65,807.

No. 69 at 39. The October 2020 Order did not apply to “persons whom

custom officers determine, with approval from a supervisor, should be

excepted based on the totality of the circumstances, including

consideration of significant law enforcement, officer and public safety,

humanitarian, and public health interests.” Id. In these instances, “DHS

shall consult with CDC concerning how these types of case-by-case,

individualized exceptions shall be made to help ensure consistency with

current CDC guidance and public health assessments.” Id. The October

2020 Order suspended covered aliens until the CDC determined 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.

These interim rules and the October 2020 Order empowered DHS to

prevent entry of, and to rapidly expel, covered aliens from congregate

settings during the peak of the pandemic. The CDC Director stated in

the October 2020 Order that the prior orders “reduced the risks of

COVID-19 transmission in POEs and Border Patrol Stations, thereby

reducing risks to DHS personnel and the U.S. health care system.” 85

Fed. Reg. at 65,810; ECF No. 69 at 8.

C. The Final Rule is published and worked in tandem with

the October 2020 Order in the “Title 42” process.

Shortly before the issuance of the October 2020 Order, on September

11, 2020, the CDC published a final rule (“Final Rule”) entitled, “Control

of Communicable Diseases; Foreign Quarantine: Suspension of the

Right to Introduce and Prohibition of Introduction of Persons from

Designated Countries or Places for Public Health Purposes.” 42 C.F.R.

§ 71.40; 85 Fed. Reg. 56,424 (Sept. 11, 2020). The Final Rule became

effective October 13, 2020, and it remains in effect as of the date of this

order. See ECF No. 69 at 1–3.

The Final Rule and October 2020 Order worked together in what

became known as the “Title 42” process.6 The Title 42 process essentially

6Title 42 refers to the statute, 42 U.S.C. § 265, relied upon by the CDC Director to

issue the Final Rule—42 C.F.R. § 71.40—and orders at issue in this case. See 42 C.F.R.

§ 71.40; 85 Fed. Reg. 56,424 (Sept. 11, 2020) (stating that the rule was implemented

per 42 U.S.C. § 265). The statute is discussed in greater detail below.

acts as an expedited way to prevent and remove the introduction of

COVID-19-positive illegal aliens that functions alongside the traditional

means of detention and expulsion under the Immigration and

Nationality Act. DHS used its Title 42 authority to expel illegal aliens

in March 2020; over the next six months, nearly 200,000 aliens were

rapidly expelled under Title 42.7

D. The Title 42 process is temporarily stayed. After the stay was

lifted, however, the CDC Director then issued the February

2021 Order, reassessing the public health risk at the border

in a way that effectively stayed the Title 42 process.

On November 18, 2020, the District of Columbia District Court

issued an injunction holding that unaccompanied alien children8

(“UAC”) were being improperly expelled pursuant to this Title 42

process. See P.J.E.S. v. Wolf, 502 F. Supp. 3d 492 (D.D.C. 2020). That

injunction was then stayed on January 29, 2021, by the United States

Court of Appeals for the D.C. Circuit. See P.J.E.S. v. Pekoske, No. 20-

5357 (D.C. Cir. Jan. 29, 2021).

Although no injunction prevented the Title 42 process from

continuing, the CDC Director issued a new order (“February 2021

Order”) that created an exception from the October 2020 Order

regarding UAC, effective January 30, 2021. 86 Fed. Reg. 9,942 (Feb.

17, 2021); ECF No. 69 at 11. The February 2021 Order was only a few

paragraphs long, yet it asserted that the “CDC has decided to exercise

its discretion to temporarily except from expulsion [UAC] encountered

in the United States pending the outcoming of its forthcoming public

health reassessment of the [October 2020] Order.” Id. The February

2021 Order further recognized that the COVID-19 pandemic “continues

to be a highly dynamic public health emergency,” and that the CDC is

“in the process of reassessing the overall public health risk at the United

7Sw. Border Land Encounters, U.S. CUSTOMS & BORDER PATROL, https://www.cbp.

gov/newsroom/stats/ southwest-land-border-encounters (last visited Dec. 2, 2021).

8“Unaccompanied alien child” is statutorily defined as “a child who—(A) has no

lawful immigration status in the United States; (B) has not attained 18 years of age;

and (C) with respect to whom—(i) there is no parent or legal guardian in the United

States; or (ii) no parent or legal guardian in the United States is available to provide

care and physical custody.” 6 U.S.C. § 279(g)(2).

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.” Id.

There was a dramatic surge of illegal border crossings following the

February 2021 Order, with 9,429 UAC encounters at the southwest

border in February of 2021. The number of UAC encounters increased

to 18,890 in March and has remained elevated ever since: more than

17,000 encounters in April; more than 14,000 in May; more than 15,000

in June; more than 18,500 in July; more than 18,000 in August; more

than 12,000 in October; more than 13,500 in November; more than

11,500 in December; and more than 8,500 in January 2022. See ECF

Nos. 68 at 18; 99 at 1.

There was also an increase of family-unit processing because Title 42

was used less frequently, despite an increase of family-unit encounters.

ECF Nos. 68 at 19; 99 at 1–2. Texas sets forth the following chart that

demonstrates these undisputed numbers regarding family-unit

encounters:

Title 42 applications to family units

Month Family-unit Absolute Percentage

encounters

November 2020 4,302 3,641 84.6

December 2020 4,406 3,332 75.6

January 2021 7,296 4,546 62.3

February 2021 19,590 9,478 48.4

March 2021 54,132 21,572 39.9

April 2021 50,094 17,930 35.8

May 2021 44,747 9,320 20.8

June 2021 55,896 8,028 14.4

July 2021 83,499 10,110 12.1

August 2021 86,631 17,070 19.7

September 2021 64,388 17,599 27.3

October 2021 42,799 13,359 31.2

November 2021 45,062 11,566 25.7

December 2021 51,736 11,503 22.2

January 2022 31,795 8,333 26.2

ECF No. 68 at 12. Thus, Texas contends that while the total number of

family unit encounters during this period increased greatly, the

percentage of family-unit members rapidly expelled under Title 42

decreased significantly. Id.

E. Texas files the instant lawsuit.

Alarmed by these figures, on April 22, 2021, Texas filed the instant

lawsuit complaining that the actions and omissions of various federal

administrative agencies caused an influx of potentially COVID-19-

positive foreign aliens to cross the southern border. ECF No. 1. In its

Complaint, Texas argued that the February 2021 Order violated the

Administrative Procedures Act (“APA”). Id. Namely, Texas argued that

the February 2021 Order arbitrarily departed from the Title 42 process

and the October 2020 Order, both of which were previously used to

prevent the entry of potentially-COVID-19-positive illegal aliens and

UAC into congregate care settings in Texas. Id. Texas further argued

that Defendants were failing to enforce the Immigration Nationality Act

(“INA”), 8 U.S.C. §1222(a), and to uphold the Take Care Clause of the

United States Constitution. Id. Texas sought eight counts of declaratory

relief to this effect. Id.

Texas also sought a preliminary injunction. The Court conducted a

preliminary injunction hearing on July 13, 2021. ECF No. 49. At this

hearing, counsel for the Government informed the Court that the

February 2021 Order would likely be superseded by an imminent CDC

order. Id. Considering this development, the Court requested that the

Government’s counsel promptly apprise the Court of the issuance of any

such order. Shortly thereafter the Government filed a Notice of New

CDC Order and attached the July 2021 Order, which is detailed in the

following section. ECF No. 50.

The Government asserted that the July 2021 Order “supersedes the

February [2021 Order] that is at issue in this litigation,” so Texas’s

claims challenging the February 2021 Order were moot and Texas’s

motion for preliminary injunction is “now moot in its entirety.” Id. The

Court agreed and issued an order denying the motion for preliminary

injunction as moot considering the July 2021 Order. ECF No. 54.

However, because the harm that Texas complained of was ongoing, the

Court granted Texas leave to amend and seek renewed preliminary

injunctive relief. Id.

F. The CDC Director issues two orders to supersede the October

2020 Order: the July 2021 and the August 2021 Orders.

After issuing the July 2021 Order,9 the CDC Director then issued the

August 2021 Order, which superseded the October 2020 Order and

incorporated, by reference, the July 2021 Order. The August 2021 Order

continued excepting UAC from the Title 42 process. ECF No. 69 at 19–

32. The August 2021 Order provides, in relevant part, as follows:

• “78 countries continue to experience high or substantial incidence

rates (≥50 cases per 100,000 people in the last seven days) and

123 countries, including the United States, are experiencing an

increasing incidence of reported new cases.” 86 Fed. Reg. at

42,831.

• In the week preceding the August 2021 Order, Mexico

“experienced a 30.2% increase in new cases” of COVID-19. Id.

• “Congregate settings, particularly detention facilities with

limited ability to provide adequate physical distancing and

cohorting, have a heightened risk of COVID-19 outbreaks.” Id. at

42,833. CBP facilities have “[s]pace constraints [that] preclude

implementation of cohorting and consequence management such

as quarantine and isolation.” Id. at 42,837.

• “The rapid spread of the highly transmissible Delta variant is

leading to worrisome trends in healthcare and community

resources. Signs of stress are already present in the southern

regions of the United States.” Id. at 42,834.

• “Countries of origin for the majority of incoming covered [aliens]

have markedly lower vaccination rates.” Of the top five

9See 86 Fed. Reg. 38,718; ECF No. 69 at 13.

originating countries, El Salvador, at 22%, had the highest rate

of vaccinated persons; Guatemala and Honduras, the two lowest,

had 1.6% and 1.8%, respectively. Id. at 42,834 & n.57.

• “At the time [of the August 2021 Order], over 70% of U.S. counties

along the U.S.-Mexico border were classified as experiencing high

or substantial levels of community transmission.” Id. & fn. 61. Of

Texas’s border counties, fourteen two were “experiencing

moderate levels of community transmission,” while the other

twelve were experiencing high levels of community

transmission. Id.

It is noteworthy that the August 2021 Order concedes that “the flow of

migration directly impacts not only border communities and regions, but

also destination communities and healthcare resources of both.” Id. at

42,835.

Yet despite these persisting problems, the August 2021 Order found

that testing, vaccines, and other mitigation measures are available. Id.

at 42,833–34. CBP also “implemented a variety of mitigation efforts to

prevent the spread of COVID-19 in POE and U.S. Border Patrol

facilities.” Id. at 42,835. Some of these mitigation efforts include:

CBP has invested in engineering upgrades, such as

installing plexiglass dividers in facilities where physical

distancing is not possible and enhancing ventilation

systems. All CBP facilities adhere to CDC guidance for

cleaning and disinfection. Surgical masks are provided to

all persons in custody and are changed at least daily and if

or when they become wet or soiled. Personal protective

equipment (PPE) and guidance are regularly provided to

CBP personnel. Recognizing the value of vaccination, CBP

is encouraging vaccination among its workforce. All

noncitizens brought into CBP custody are subject to health

intake interviews, including COVID-19 screening

questions and temperature checks. If a noncitizen in

custody displays symptoms of COVID-19 or has a known

exposure, CBP facilitates referral to the local healthcare

system for testing. Finally, in the event CBP decides to

release a noncitizen prior to removal proceedings, the

agency has coordinated with local governments and non-

governmental organizations to arrange COVID-19 testing

at release.

Id. The CDC “believes the COVID-19-related public health concerns

associated with [UAC] introduction can be adequately addressed

without [UAC] being subject to this Order.” Id. 42,838. Thus, “[a]s

outlined in the July [2021 Order] and incorporated herein, CDC is fully

excepting [UAC] from this Order,” because UAC “can be excepted from

the Order without posing a significant health risk.” Id.; see also id. at

42,840 (“Based on an assessment of the current COVID-19 epidemiologic

landscape and the U.S. government’s ongoing efforts to accommodate

[UAC], CDC does not find public health justification for this Order to

apply . . . to [UAC].”).

G. Texas files a renewed motion for preliminary injunction and

the Government moves to dismiss.

Texas filed an Amended Complaint (ECF No. 62) and now challenges

both the July 2021 and the August 2021 Orders for: violating the APA,

failing to detain certain aliens as required by the INA, breaching an

agreement between the Government and Texas, and violating the Take

Care Clause. See ECF No. 62.

Texas also filed a renewed motion for preliminary injunction. ECF

No. 67. The Government filed a consolidated response and motion to

dismiss (ECF Nos. 76–77), Texas filed a consolidated reply in support of

its renewed motion for preliminary injunction and response in

opposition to the Government’s motion to dismiss (ECF No. 89), and the

Government filed a reply in support of its motion to dismiss (ECF

No. 93).10

10Before the Court is a Brief of Amicus Curiae in Support of the Renewed Motion

for Preliminary Injunction, by filed the State of Missouri. ECF No. 75. Also before the

Court is a Brief of Amici Curiae in Opposition to the Renewed Motion for Preliminary

Injunction, filed by Al Otro Lado, American Immigration Council, Asylum Access,

Asylum Access Mexico A.C, Catholic Legal Immigration Network, Inc., Center for Civic

Policy, Center for Gender and Refugee Studies, Comunidad Maya Pixan Ixim,

Disciples Immigration Legal Counsel, FWD.us, First Focus on Children, Florence

Immigrant and Refugee Rights Project, Immigrant Defenders Law Center, Innovation

Law Lab, International Mayan League, Justice Action Center, Justice for Our

Neighbors El Paso, Kids in Need of Defense, Kino Border Initiative, La Raza Centro

Legal SF, La Raza Community Resource Center, Migrant Center for Human Rights,

National Immigration Law Center, National Immigration Project, Project Corazon,

Lawyers for Good Government, Refugees International, Student Clinic for Immigrant

After receiving the Parties’ briefing and supporting appendices, the

Court notified the Parties that it did not believe an evidentiary hearing

was necessary to resolve the motion to dismiss and renewed motion for

preliminary injunction but provided the parties an opportunity to file an

objection and request an evidentiary hearing. ECF No. 94. No such

objection was filed. Therefore, the Motion to Dismiss and Renewed

Motion for Preliminary Injunction are now ripe for review.

APPLICABLE LAW

A. Immigration and Nationality Act, 8 U.S.C. §§ 1101–1537

“The Government of the United States has broad, undoubted power

over the subject of immigration and the status of aliens.” Arizona v.

United States, 567 U.S. 387, 394 (2012). “The Immigration and

Nationality Act . . . codified at 8 U.S.C. § 1101 et seq., is the

comprehensive statutory scheme governing immigration in the United

States. It controls, among other things, the removal of illegal aliens

found within the United States.” Crane v. Johnson, 783 F.3d 244, 247

(5th Cir. 2015). The Homeland Security Act of 2002, Pub. L. 107-296,

116 Stat. 2135, charges DHS with enforcing the nation’s immigration

laws, including the removal of aliens who are not lawfully present in the

United States. See, e.g., Arizona, 567 U.S. at 397 (“Agencies in the

Department of Homeland Security play a major role in enforcing the

country’s immigration laws. United States Customs and Border

Protection (CBP) is responsible for determining the admissibility of

aliens and securing the country’s borders.”).

Aliens who “are ‘inadmissible’ and therefore ‘removable’” include

those who lack a valid entry document when they apply for admission.

Dept. of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1964 (2020)

(citing 8 U.S.C. §§ 1182(a)(7)(A)(i)(l), 1229a(e)(2)(A)). Aliens who arrive

in the United States without having been admitted and aliens who are

present in the United States without having been lawfully admitted, are

deemed to have applied for admission. 8 U.S.C. § 1225(a)(1). Expedited

removal procedures for those illegal aliens are available if they: (1) are

Justice, Inc., Taylor Levy Law, The Refugee and Immigrant Center for Education and

Legal Services. ECF No. 84.

inadmissible because they lack a valid entry document; (2) have not been

continuously physically present in the United States for the two years

preceding their inadmissibility determination; or (3) are among those

whom the Secretary of Homeland Security has designated for expedited

removal. Id. § 1225(b)(1)(A). Once an immigration officer determines

that such an alien is inadmissible, the alien is ordered to be “removed

from the United States without further hearing or review.” Id.

§ 1225(b)(1)(A)(i).

Whether subject to standard or expedited removal, aliens placed in

removal proceedings must be detained until the proceedings are

complete. See Jennings v. Rodriguez, 138 S. Ct. 830, 844–45 (2018)

(citing 8 U.S.C. § 1225(b)(1), (2)). Similarly, aliens who intend to claim

asylum or who claim a credible fear of persecution if deported must be

detained until their bid for asylum is resolved. See 8 U.S.C. §§ 1158,

1225(b)(1)–(2). DHS may temporarily parole these aliens “for urgent

humanitarian reasons or significant public benefit,” but it may do so

“only on a case-by-case basis.” Id. § 1182(d)(5)(A).

Also inadmissible are aliens who have a “communicable disease of

public health significance,” as defined by “regulations prescribed by the

Secretary of Health and Human Services.” Id. § 1182(a)(1)(A)(i). Aliens

must be detained to determine whether they are inadmissible for public-

health reasons under two circumstances. First, they must be detained if

DHS has reason to believe they are “afflicted with” such a disease. 8

U.S.C. § 1222(a). Second, they must be detained if DHS “has received

information showing that [they] are coming from a country or have

embarked at a place” where such a disease is “prevalent or epidemic.”

This detention must enable “immigration officers and medical officers”

to conduct “observation and an examination sufficient to determine

whether” the aliens are inadmissible. Id.

B. Public Health Services Act, 42 U.S.C. § 265

Under 42 U.S.C. § 265, the CDC is authorized11 to prohibit entry into

the United States “such persons and property” that the CDC determines

11The authority originally granted to the Surgeon General was eventually

delegated to the CDC Director.

will increase the danger and spread of a communicable disease from

entering into the United States:

Whenever the [CDC Director] 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 [CDC Director], 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.

42 U.S.C. § 265.

C. The Administrative Procedures Act (“APA”)

“The APA ‘sets forth the procedures by which federal agencies are

accountable . . . and their actions [are] subject to review by the courts.’”

Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891,

1905 (2020) (Roberts, C.J.) (quoting Franklin v. Massachusetts, 505 U.S.

788, 796 (1992)). The APA requires agencies to engage in “reasoned

decisionmaking,” Michigan v. EPA, 576 U.S. 743, 750 (2015), and

provides that agency actions must be “set aside” if they are “arbitrary”

or “capricious.” 5 U.S.C. § 706(2)(A). Under this “narrow standard of

review, . . . a court is not to substitute its judgment for that of the

agency,” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513 (2009)

(internal quotation marks omitted). Rather, courts assess only whether

the decision was “based on a consideration of the relevant factors and

whether there has been a clear error of judgment.” Citizens to Pres.

Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971).

ANALYSIS OF MOTION TO DISMISS

Before addressing the substance of the Renewed Motion for

Preliminary Injunction, the Court first addresses the Government’s

Motion to Dismiss.

A. Texas has standing to bring Claims A and B.

Texas asserts two claims against the Government for alleged

violations of the APA. ECF No. 62 ¶¶ 75–85. First, Texas claims that the

July 2021 and August 2021 Orders did not undergo notice-and-comment

rulemaking (Claim A). Id. Second, Texas claims the August 2021 Order

is “arbitrary and capricious” for failing to consider Texas’s reliance

interests and other relevant factors (Claim B). Id.

The Government moves to dismiss both claims on the grounds that:

(1) Texas lacks standing to assert them, (2) the decisions are committed

solely to agency discretion and are not subject to judicial review, and

(3) Texas is not within the relevant “zone of interests.” ECF No. 76 at

15. The Government argues that Texas makes mere general allegations

that it will suffer injuries from increased illegal immigration and the

associated increased costs. Id. at 16. The Government further argues

that the authorities Texas cites are inapposite because “Title 42 orders

are not immigration actions and do not represent the exercise of any

form of immigration policymaking with an intended or expected effect to

increase or decrease the long-term presence of non-citizens into the

country.” Id. Instead, the Government characterizes the challenged

orders as “temporary health measures” that were issued “in an attempt

to alleviate the effect of the COVID-19 pandemic, most primarily in

connection with processing noncitizens in congregate settings at Ports

of Entry and Border Patrol stations.” Id.

Texas rejects the notion that its APA claims are merely generalized

grievances on illegal immigration. ECF No. 89 at 5. Instead, Texas sets

forth specific costs of increased healthcare spending. See, e.g., ECF No.

69 at 84, 90, 98, 99. Texas argues these costs are practically admitted by

the Government in the August 2021 Order, which acknowledges

[t]he rapid spread of the highly transmissible Delta variant

is leading to worrisome trends in healthcare and

community resources. Signs of stress are already present

in the southern regions of the United States. Ultimately,

the flow of migration directly impacts not only border

communities and regions, but also destination

communities and the healthcare resources of both.

86 Fed. Reg. at 42,835, ECF No. 69 at 23.

1. Traditional Standing

Federal courts are courts of limited jurisdiction, possessing only that

power authorized by Constitution and statute. Xitronix Corp. v. KLA-

Tencor Corp., 916 F.3d 429, 435 (5th Cir. 2019). “The requirement that

jurisdiction be established as a threshold matter spring[s] from the

nature and limits of the judicial power of the United States and is

inflexible and without exception.” Id. (quoting Steel Co. v. Citizens for a

Better Env’t, 523 U.S. 83, 94–95 (1998)). “The law of Article III standing

. . . serves to prevent the judicial process from being used to usurp the

powers of the political branches.” Clapper v. Amnesty Int’l USA, 568 U.S.

398, 408 (2013). Thus, to establish standing, Texas must show an injury

that is “concrete, particularized, and actual or imminent; fairly

traceable to the challenged action; and redressable by a favorable

ruling.” Id. at 409 (citation omitted); see also Susan B. Anthony List v.

Driehaus, 573 U.S. 149, 158 (2014).

a. Injury in Fact

A plaintiff seeking to establish injury-in-fact must show that it

suffered “an invasion of a legally protected interest” that is “concrete,”

“particularized,” and “actual or imminent, not conjectural or

hypothetical.” Spokeo, Inc. v. Robbins, 578 U.S. 330, 339 (2016) (quoting

Lujan v. Def. of Wildlife, 504 U.S. 555, 560 (1992)). “[T]he injury

required for standing need not be actualized. A party facing prospective

injury has standing to sue where the threatened injury is real,

immediate, and direct.” Davis v. Fed. Election Comm’n, 554 U.S. 724,

734 (2008).

“[T]he expenditure of state funds may qualify as an invasion of a

legally protected interest sufficient to establish standing under the

proper circumstances.” Crane v. Napolitano, 920 F. Supp. 2d 724, 743

(N.D. Tex. 2013) (O’Connor, J.), aff’d sub nom., 783 F.3d 244 (5th Cir.

2015); see also Clinton v. City of N.Y., 524 U.S. 417, 430–31 (1998)

(holding adverse effects on the “borrowing power, financial strength, and

fiscal planning” of a governmental entity can constitute a sufficient

injury-in-fact to establish constitutional standing); Sch. Dist. of City of

Pontiac v. Sec’y of U.S. Dep’t of Educ., 584 F.3d 253, 261 (6th Cir. 2009)

(holding school districts and education associations had standing “based

on their allegation that they must spend state and local funds” to comply

with the challenged law).

Here, the Government contends that Texas’s financial injuries are

simply generalized grievances with current border policy. ECF No. 76 at

16 (relying on Crane, 783 F.3d at 252). The Court cannot agree with the

Government on this record. That is, Texas proffers specific,

uncontroverted evidence that it will experience increased financial

hardship—most directly through healthcare spending. ECF No. 68 at

21. Included in Texas’s appendix is a declaration from Lisa Kalakanis,

the Data Dissemination and Reporting Director with the Texas Health

and Human Services Commission’s Office of Data Analytics and

Performance. ECF No. 69 at 81. Kalakanis testifies that Texas HHSC

provides three principal categories of services and benefits to

undocumented aliens in Texas: (1) Texas Emergency Medicaid; (2) the

Texas Family Violence Program; and (3) Texas Children’s Health

Insurance Program Perinatal Coverage. Id. at 82. Taking just one of

those programs—Texas Emergency Medicaid—Kalakanis testifies that

“[t]he total estimated cost to [Texas] for the provision of Emergency

Medicaid services to undocumented immigrants residing in Texas was

approximately $80 million in SFY 2007, $62 million in SFY 2009, $71

million in SFY 2011, $90 million in SFY 2013, and $73 million in SFY

2015.” Id. at 83. She estimates the cost in SFY 2019 at $80 million. Id.

Kalakanis testifies that based on her knowledge and expertise of the

benefits and services provided to undocumented migrants by the Texas

HHSC, “the total costs to the State of providing such services and

benefits to undocumented immigrants will continue to reflect trends to

the extent that the number of undocumented immigrants residing in

Texas increases or decreases each year.” Id. at 84.

Texas further establishes specific financial injuries through the costs

of issuing of driver’s licenses to illegal aliens (Id. at 96–107), providing

education to UAC (Id. at 88–95), and incarcerating aliens convicted of

crimes committed when they are not legally present in the United States

(Id. at 108–10). The Fifth Circuit has found these types of specific

injuries sufficient to establish injury when a federal action would have

enabled “500,000 illegal aliens in Texas” to receive such benefits. See

Texas v. United States, 809 F.3d 134, 155–56 (5th Cir. 2015).

Texas further supports its assertion of injuries by appending two

disaster declarations issued by Hidalgo County and Webb County. ECF

No. 68 at 18–20. Hidalgo County’s declaration recited that an

“alarmingly substantial number of immigrants” were being released

into Hidalgo County, “including individuals that are positive for COVID-

19,” so “local Non-Governmental Organizations, and the City of McAllen

are overwhelmed . . . and can no longer adequately feed, house, provide

medical attention or otherwise accommodate the individuals being

released.” ECF No. 69 at 52. The Webb County disaster declaration

similarly recites that Webb County has experienced the “organized

transportation of large numbers of individuals (refugees, immigrants

and/or migrants, a significant portion of whom are unvaccinated,

untested for the COVID-19 virus and COVID positive) who have

been . . . transported into Webb County.” Id. at 63. The declaration

stated that the “unanticipated influx of these individuals has

overwhelmed local resources and services to the extent that they can no

longer adequately feed, house, provide medical attention or otherwise

accommodate these individuals entering Webb County.” Id.

Finally, the Court highlights that the August 2021 Order itself

acknowledges that “[s]igns of stress are already present in the southern

regions of the United States,” and that “the flow of migration directly

impacts not only border communities and regions, but also destination

communities and healthcare resources of both.” 86 Fed. Reg. at 42,835;

ECF No. 69 at 23. Thus, in the Court’s view, the August 2021 Order

tacitly confirms that Texas is suffering the injuries alleged in its

Complaint.

Based on the foregoing, the Court concludes that Texas easily

satisfies its burden on the injury-in-fact prong of analysis.

b. Traceability

The Government next argues that Texas cannot show that any of its

alleged financial harms are fairly traceable to the July 2021 and August

2021 Orders. ECF No. 76 at 17. The Government’s position is that Texas

cannot establish harms that are fairly traceable because the causal

relationship between the injury and challenged actions are dependent

on the decisions of independent third parties. Id. (citing California v.

Texas, 141 S. Ct. 2104, 2117 (2021)). The Court cannot agree with the

Government’s theory.

The injuries detailed above are directly attributable to the relevant

Title 42 orders without intervention by third parties in the causal chain.

Indeed, the Hidalgo County disaster declaration clearly shows the

connection between “U.S. Customs and Border Protection . . . releasing

an alarmingly substantial number of immigrants . . . within the County

of Hidalgo, Texas,” and local Non-Governmental Organizations and the

City of McAllen being “overwhelmed with the unanticipated influx . . .

and can no longer adequately feed, house, provide medical attention or

otherwise accommodate the individuals being release.” ECF No. 69 at

52. Similarly, the Webb County disaster declaration directly links the

“unanticipated influx” of unvaccinated and COVID-19 positive refugees,

immigrants and/or migrants to “overwhelmed local resources and

services.” Id. at 63. These injuries are directly attributable to the

challenged orders and their immediate effects.

Given this evidence, the Court concludes that Texas satisfied its

burden on the traceability prong of analysis.

c. Redressability

The Government does not appear to challenge Texas on the

redressability requirement of standing (see ECF No. 76 at 15–20), but

Texas satisfies this element in any event. See ECF No. 89 at 8–10. That

is, the Court has the power to grant an injunction that would eliminate

or at least ameliorate the injuries discussed above. Thus, Texas has

satisfied the requirement that its injuries could be redressable by a

favorable ruling from the Court.

Accordingly, the Court concludes that Texas established each of the

traditional standing requirements.12

2. APA Procedural Requirements

The Government next challenges Texas’s standing to bring its APA

claims because the challenged July 2021 and August 2021 Orders are

committed to agency discretion and Texas’s injuries do not fall within

the appropriate zone of interests. ECF No. 76 at 20–25. The Court

considers each challenge in turn.

a. Agency Discretion

The APA establishes a “basic presumption of judicial review [for] one

‘suffering legal wrong because of agency action.’” Abbott Laboratories v.

Gardner, 387 U.S. 136, 140 (1967) (quoting 5 U.S.C. § 702). That

presumption can be rebutted by a showing that the relevant statute

“preclude[s]” review, § 701(a)(1), or that the “agency action is committed

to agency discretion by law.” 5 U.S.C. § 701(a)(2); see also Qorane v. Barr,

919 F.3d 904, 911–12 (5th Cir. 2019). This exception to the presumption

of judicial review is to be read “quite narrowly.” Regents, 140 S. Ct. at

1905. The Fifth Circuit instructs that agency decisions are “completely

unreviewable under the committed to ‘agency discretion by law’

exception” if “the statutory scheme, taken together with other relevant

materials, provides absolutely no guidance as to how that discretion is

to be exercised.” Texas, 809 F.3d at 168.

The Government contends that 42 U.S.C. § 265 only permits, and

does not mandate, the CDC to prohibit the entry of persons into the

United States, even if the CDC determines there is an accompanying

danger of the introduction of a communicable disease into the United

States. ECF No. 76 at 21.

12The Court notes that, as an alternative argument, Texas asserts parens patriae

standing based on increased risks of COVID-19 to Texas citizens. ECF No. 68 at 30.

The Government asserts that Supreme Court caselaw precludes a state from having

parens patriae standing to bring an action against the federal government. ECF No.

76 at 17 (citing Alfred L. Snapp & Son, Inc. v. P.R. ex rel. Barez, 458 U.S. 592, 610 n.16

(1982)). The Court need not address this alternative theory, as it concluded Texas

established traditional standing.

The Court considers the Government’s argument—that the July

2021 and August 2021 Orders are unreviewable because they were

“committed to agency discretion”—to be based on a too-narrow framing

of Texas’s claims. That is, while Texas challenges both 42 U.S.C. § 265

and the Final Rule (42 C.F.R. § 71.40(a)), the Government focuses its

argument exclusively on 42 U.S.C. § 265. See ECF No. 76 at 20–22. The

Government’s only argument dedicated to the Final Rule is a bald

assertion that it “says nothing about what standards, if any, must be

met in order for the CDC to withdraw a Title 42 order.” Id. at 22. But as

Texas rightly points out, 42 C.F.R. § 71.40(c) establishes the parameters

the CDC must consider. ECF No. 89 at 9. Indeed, subsection (c)

expressly states that “[a]ny order issued by the [CDC] Director under

this section shall include” a statement of five matters. 42 C.F.R.

§ 71.40(c) (emphasis added). Moreover, subsection (d) expressly states

that when issuing “any order under this section, the [CDC] Director

shall, as practicable under the circumstances, consult with all Federal

departments or agencies whose interests would be impacted by the

order.” Id. § 71.40(d) (emphasis added).13

Accordingly, the Court concludes that the statute and regulation,

and any orders issued thereunder—specifically, the July 2021 and

August 2021 Orders—are reviewable because they are not committed to

agency discretion. Rather, these materials merely provide guidance as

to how the CDC’s discretion should be exercised.

b. Zone of Interests

“The interest [Texas] asserts must be ‘arguably within the zone of

interests to be protected or regulated by the statute’ that [Texas] says

was violated.” Texas, 809 F.3d at 162 (quoting Match-E-Be-Nash-She-

Wish Band of Pottawatomi Indians v. Patchak, 567 U.S. 209, 224

(2012)). That “test . . . is not meant to be especially demanding and is

applied in keeping with Congress’s evident intent when enacting the

APA to make agency action presumptively reviewable.” Id. (cleaned up).

13By comparison, later in subsection (d), the regulation provides discretion so that

the CDC Director “may, as practicable under the circumstances, consult with any State

or local authorities that he or she deems appropriate in his or her discretion.” Id.

(emphasis added).

“The Supreme Court ‘has always conspicuously included the word

‘arguably’ in the test to indicate that the benefit of any doubt goes to the

plaintiff.’” Id. “The test forecloses suit only when a plaintiff’s ‘interests

are so marginally related to or inconsistent with the purposes implicit

in the statute that it cannot reasonably be assumed that Congress

intended to permit the suit.’” Id.

Here, Texas is a border state facing a healthcare crisis that is

compounded by an immigration crisis. This clearly falls within the zone

of interests to be protected by 42 U.S.C. § 265 and 42 C.F.R. § 71.40.

Indeed, the Final Rule, October 2020 Order, and August 2021 Order all

expressly recognize the challenges COVID-19-positive aliens pose to

border states and border counties. The Final Rule states that the CDC

Director may consult with state and local authorities to prohibit persons

from entering the country if necessary, to avert introducing a dangerous

communicable disease. 42 C.F.R. § 71.40(d). The October 2020 Order

stated that its purpose was, inter alia, to mitigate the risk of

transmission and spread of COVID-19 in the interior of the United

States and the strain such transmission would put on the United States

healthcare system. 85 Fed. Reg. at 65,808; see also id. at 65,810 (finding

serious danger of introduction of COVID-19 into the interior of the

country). The August 2021 Order found that at the time of its issuance,

over 70% of United States counties along the southern United States–

Mexico border had high or substantial levels of community COVID-19

transmission, 86 Fed. Reg. at 42,834, and that signs of stress to

healthcare and public health capacities in border communities and

regions are already present. Id. at 42,835. This demonstrates that

Texas’s interests asserted are within the zone of interests to be protected

and regulated by 42 U.S.C. § 265, the Final Rule, and the October 2020,

July 2021, and August 2021 Orders.

Thus, the Government’s Motion to Dismiss Texas’s Claims A and B

will be DENIED.

B. Texas’s Claims C.1 and D are not barred by res judicata.

In its First Amended Complaint, Texas asserts claims that the

Government is required by statute and regulation to detain rather than

parole UAC and family units. ECF No. 62 ¶¶ 86–88, 92–93. Texas argues

that 8 U.S.C. § 1182(d)(5)(A)—the statute excepting mandatory

detention—may only be exercised on a case-by-case basis for urgent

humanitarian reasons. ECF No. 68 at 27–29. Accordingly, Texas seeks

to compel the Government to follow the INA (8 U.S.C. § 1225) and to

have the Court set aside any contrary action as arbitrary or capricious.

The Government asserts that these claims are barred by res judicata

because Texas has already successfully litigated the same claims in

Texas v. Biden, No. 2:21-CV-067-Z, 2021 WL 3603341 (N.D. Tex. Aug.

13, 2021), a case challenging the suspension of Migrant Protection

Protocols (“MPP”). ECF No. 76 at 27.

Texas disagrees that the claims are fungible. ECF No. 89 at 11. That

is, while the requested relief of detention is the same, the MPP case is

distinguishable because it involved claims for individuals who are

detained for the purpose of deportation. Id. at 12. Conversely, the

instant case involves a claim that the Government should be detaining

aliens to determine if they are afflicted with COVID-19. Id.

The Government responds that comparing the claims shows that

both are titled, “Violation of Section 1225,” and the only difference

between them is on Texas’s theory of causation. The injury, however, is

the same. ECF No. 93 at 5. Thus, the Government argues that under the

transactional test utilized by courts in the Fifth Circuit (detailed below),

res judicata bar should Texas’s claims C.1 and D. Id.

As a preliminary matter, “[a]lthough ‘generally a res judicata

contention cannot be brought in a motion to dismiss,’ a district court

may consider it in that posture when the plaintiff ‘did not challenge [the

defendants’] ability to argue res judicata in a motion to dismiss rather

than in their response or a motion for summary judgment.’” Stiel v.

Heritage Numismatic Auctions, Inc., 816 F. App’x 888, 891–92 (5th Cir.

2020) (quoting Test Masters Educ. Servs., Inc. v. Singh, 428 F.3d 559,

570 n.2 (5th Cir. 2005)). Thus, because Texas does not challenge the

Government’s assertion of res judicata in their Motion to Dismiss, and

because the documents in the MPP case relied upon by the Government

are proper for the Court to judicially notice, the Court may consider res

judicata in the context of a motion to dismiss.

“Four elements must be met for a claim to be barred by res judicata:

‘(1) the parties must be identical in the two actions; (2) the prior

judgment must have been rendered by a court of competent jurisdiction;

(3) there must be a final judgment on the merits; and (4) the same claim

or cause of action must be involved in both cases.’” Oreck Direct, LLC v.

Dyson, Inc., 560 F.3d 398, 401 (5th Cir. 2009) (Haynes, J.) (quoting In re

Ark–La–Tex Timber Co., 482 F.3d 319, 330 (5th Cir.2007)). The first,

second, and third elements are not in dispute, and the Court concludes

that they are satisfied in any event. Thus, the Court must further

analyze only the fourth element.

To determine if the same claim or cause of action is involved in two

separate cases, the Fifth Circuit utilizes the “transactional test,” which

“requires that the two actions be based on the same ‘nucleus of operative

facts.’” In re Ark–La–Tex Timber Co., 482 F.3d at 330; see also In re

Southmark Corp., 163 F.3d 925, 934 (5th Cir. 1999) (“To determine

whether two suits involve the same claim under the fourth element, this

court has adopted the transactional test of the RESTATEMENT (SECOND)

OF JUDGMENTS, § 24.”). “What constitutes a ‘transaction’ or a ‘series of

transactions’ is determined by weighing various factors such as whether

the facts are related in time, space, origin, or motivation; whether they

form a convenient trial unit; and whether their treatment as a unit

conforms to the parties’ expectations or business understanding or

usage.’” Oreck Direct, LLC, 560 F.3d at 402 (cleaned up). “It is the

‘nucleus of operative facts, rather than the type of relief requested,

substantive theories advanced, or types of rights asserted’ that defines

the claim.” Hous. Prof’l Towing Ass’n v. City of Hous., 812 F.3d 443, 447

(5th Cir. 2016) (Smith, J.) (quoting United States v. Davenport, 484 F.3d

321, 326 (5th Cir. 2007)).

Applying the transactional test here, the Court concludes Texas’s

claims C.1 and D are not barred by res judicata because the nucleus of

operative facts presented in the two cases are distinguishable. The facts

of the MPP case involved aliens who were detained for the purpose of

being deported back to Mexico. Conversely, the facts in this case involve

UAC and family units (who are allegedly not being detained) to

determine if they are afflicted with COVID-19. In the Court’s view, the

Government’s assertions improperly focus on the type of relief, theory

advanced, and rights asserted by Texas. But that is not the proper focus

of the transactional test. See Hous. Prof’l Towing Ass’n, 812 F.3d at 447.

Instead, the Court concludes that the underlying facts of the two cases

are not “related in time, space, origin, or motivation”; they do not “form

a convenient trial unit”; and their “treatment as a unit” would not

appropriately “conform to the parties’ expectations.” See Oreck Direct,

LLC, 560 F.3d at 402.

The Court therefore concludes that Texas’s claims C.1 and D are not

barred by res judicata, and the Government’s Motion to Dismiss these

claims will be DENIED.

C. Texas has standing to bring Claim C.2.

Next, Texas claims the Government is improperly refusing to detain

aliens to determine if they have COVID-19—a communicable disease of

public health significance. ECF No. 62 ¶¶ 89–91. Accordingly, Texas

alleges the Government is violating 8 U.S.C. § 1222(a) of the INA by

failing to detain UAC and family units. Id. The Government moves to

dismiss this claim, arguing it is statutorily barred by 8 U.S.C.

§ 1252(f)(1), which provides that “[n]o court (other than the Supreme

Court) shall have jurisdiction or authority to enjoin or restrain the

operation of the provisions of part IV of this subchapter.” See ECF No.

76 at 30–33.

The Court rejects the Government’s argument for the same reason

Judge Kacsmaryk did when he decided that Section 1252(f)(1) “does not

apply because Plaintiffs are not seeking to restrain Defendants from

enforcing Section 1225. [Rather,] Plaintiffs are attempting to make

Defendants comply with Section 1225.” Texas v. Biden, 2021 WL

3603341, at *15 (emphasis in original). Here, Texas similarly seeks to

require the Government to comply with Section 1222(a), not restrain the

Government from enforcing it.

The Court therefore concludes that the Government’s Motion to

Dismiss Texas’s Claim C.2 will be DENIED.

D. Texas abandoned Claim E; regardless, this claim is no longer

applicable because the relevant agreement has expired.

Texas asserts a claim for a violation of an agreement between Texas

and the Government. ECF No. 62 ¶¶ 94–95. The Government challenges

the claim by arguing it is barred by res judicata and in any event is

unenforceable. ECF No. 76 at 33–34. The Government further argues

that the agreement is inapplicable to these facts because it expired on

August 1, 2021. Id. at 34. Texas did not respond to this argument. See

generally ECF No. 89. Thus, the Court concludes that Texas has

abandoned the claim. Even if the claim were not abandoned, the Court

would conclude, like Judge Kacsmaryk, that the agreement has already

expired and is thus inapplicable to the August 2021 Order. See Texas v.

Biden, 2021 WL 3603341, at *7.

The Court will therefore GRANT the Government’s Motion to

Dismiss Texas’s Claim E.

E. Texas’s Take-Care-Clause Claim (Claim F) is duplicative.

Finally, Texas alleges that the Court has inherent authority to enjoin

the Government from disregarding the INA and from taking agency

actions that violate the Take Care Clause of the United States

Constitution and that the Court can enjoin such activity under its

inherent authority. ECF No. 62 ¶¶ 96–98. The Government seeks to

dismiss this claim as duplicative of Texas’s other claims and because it

is not justiciable. ECF No. 76 at 34–35. Texas responds with citations to

two out-of-circuit cases to support that a Take-Care-Clause claim may

be justiciable. ECF No. 89 at 14–15.

Here, the Court need not address whether a claim under the Take

Care Clause is justiciable because the Court agrees with the

Government that the claim is duplicative of claims A through D. See,

e.g., King Aerospace Com. Corp., Inc. v. Al-Anwa Aviation, Inc., No. 3:08-

CV-0999-L, 2010 WL 3582597, at *10 (N.D. Tex. Sept. 10, 2010) (“The

court determines that these tort claims, like the breach of fiduciary duty

claim, are duplicative of Al–Anwa’s breach of contract claim and should

therefore be dismissed.”).

Therefore, the Court will GRANT the Government’s Motion to

Dismiss Texas’s Claim F.

ANALYSIS ON MOTION FOR PRELIMINARY INJUNCTION

Having resolved the Government’s Motion to Dismiss, the Court

limits its preliminary injunction analysis to the claims properly before

the Court. The Court will therefore analyze claims: A, B, C, and D.

A. Texas has established the requisite factors for a preliminary

injunction.

A preliminary injunction is an “extraordinary and drastic remedy”

that is to be granted “only when the movant, by a clear showing, carries

the burden of persuasion” as to each element. Digit. Generation, Inc. v.

Boring, 869 F. Supp. 2d 761, 772 (N.D. Tex. 2012) (quoting Holland Am.

Ins. Co. v. Succession of Roy, 777 F.2d 992, 997 (5th Cir. 1985)).

To be entitled to a preliminary injunction, a movant must establish:

(1) a likelihood of success on the merits; (2) a substantial threat of

irreparable injury; (3) that the threatened injury if the injunction is

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. Ladd v. Livingston, 777 F.3d 286, 288 (5th Cir. 2015) (quoting

Trottie v. Livingston, 766 F.3d 450, 451 (5th Cir. 2014)).

The decision to grant or deny preliminary injunctive relief is left to

the sound discretion of the district court. Miss. Power & Light Co. v.

United Gas Pipe Line Co., 760 F.2d 618, 621 (5th Cir. 1985). If the

movant fails to establish any one of the four essential elements, a

district court may not grant a preliminary injunction. See Women’s Med.

Ctr. of Nw. Hous. v. Bell, 248 F.3d 411, 419 n.15 (5th Cir. 2001).

1. Likelihood of Success on the Merits

Texas asserts that the July 2021 and August 2021 Orders, which are

final agency actions, improperly amend the October 2020 Order and

Title 42 process.14 ECF No. 68 at 23–26. Texas therefore argues that the

July 2021 and August 2021 Orders are arbitrary or capricious because

they fail to offer a reasoned explanation for excepting UAC from the

14See 5 U.S.C. § 551(6), (13).

Title 42 process. Id. Further, Texas asserts that the July 2021 and

August 2021 Orders are inconsistent with the October 2020 Order, they

did not go through proper notice-and-comment proceedings, and there is

a de facto policy excepting family units from the Title 42 process. Id. The

Government rejoins that the challenged orders provide full explanations

with citations that support the decision to except UAC from Title 42

removal. ECF No. 76 at 37.

Under the APA, a court must “hold unlawful and set aside agency

action . . . found to be—(A) arbitrary, capricious, an abuse of discretion,

or otherwise not in accordance with law . . . [or] (C) in excess of statutory

jurisdiction, authority, or limitations, or short of statutory right.” Texas,

809 F.3d at 178 (quoting 5 U.S.C. § 706(2)). The arbitrary or capricious

standard requires that agency action be reasonable and reasonably

explained. Fed. Commc’ns Comm’n v. Prometheus Radio Project, 141 S.

Ct. 1150, 1158 (2021). This is a narrow and deferential standard of

review, which prevents a court from substituting its own policy

judgment for that of the agency. Id. The court’s job is simply to

determine if there is a “rational connection between the facts found and

the choice made.” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm

Mut. Auto Ins., 463 U.S. 29, 43 (1983).

a. No Reasoned Decisionmaking.

The Fifth Circuit requires that federal agencies “engage in ‘reasoned

decisionmaking.’” Huawei Techn. USA, Inc. v. Fed. Commc’n Comm’n, 2

F.4th 421, 433 (5th Cir. 2021) (quoting Sierra Club v. U.S. Envtl. Prot.

Agency, 939 F.3d 649, 664 (5th Cir. 2019)). Accordingly, the CDC’s

process for issuing its July 2021 and August 2021 Orders had to be

“logical and rational,” and the CDC had to consider “the relevant factors”

and make “a rational connection between the facts found and the choice

made.” Sierra Club, 939 F.3d at 664 (cleaned up). Under this standard,

unexplained inconsistencies in the rulemaking records are grounds for

striking down the action. Id.

The record before the Court demonstrates that nothing changed

between the October 2020 Order, the July 2021, and the August 2021

Order. The COVID-19 virus (still) remains a threat. In fact, the orders

expressly recognize the unique strain that it places on border states and

counties. As such, the Final Rule and October 2020 Order sought to

address the potential harms COVID-19-positive illegal aliens pose to

American citizens, including those who work for CBP and other

immigration-related agencies.

Despite the continuous threat of COVID-19, and its potential

increase in severity due to new variants, the CDC somehow concluded

that it is appropriate to except UAC from the July 2021 and August 2021

Orders. In support, the CDC asserted that it chose to except UAC

because there are better measures to prevent UAC from spreading

COVID-19 to each other. 86 Fed. Reg. at 38,718; ECF No. 69 at 13. But

the July 2021 Order concedes that UAC still spend, on average, more

than a day clustered at a DHS facility, where they can expose other

detainees, DHS personnel, and American citizens and residents to

whatever viruses they are carrying. Id. at 38,719. And instead of trying

to prevent UAC from spreading the viruses they are potentially carrying

to the interior of the United States, the Government chose to send UAC

away from the facilities where the Government could monitor them and

their health. Id.

Nothing in the orders, however, attempts to explain how preventing

the spread of COVID-19 between UAC can also prevent the spread of

COVID-19 from the interior of the United States. Importantly, this

decision is completely contrary to the October 2021 Order’s purpose:

“[T]o mitigate the continued risks of COVID-19 transmission and spread

of COVID-19 to CBP personnel, U.S. citizens, lawful permanent

residents, and other persons in the POEs and Border patrol stations,”

as well as “further transmission and spread of COVID-19 in the interior

of the United States.” 85 Fed. Reg. at 65,808; ECF No. 69 at 6. Indeed,

as Texas points out, the CDC’s own findings reveal that “more than

15,000 [UAC] have been diagnosed with COVID-19—roughly 8,500 of

them in the custody of someone other than DHS.” ECF No. 68 at 24–25

(citing 86 Fed. Reg. at 38,719; ECF No. 69 at 14). Of course, evidence

might show that excepting UAC does not spread—or increase the risk of

spreading—COVID-19 to the interior of the United States. But the

Government failed to make that showing.

Moreover, Texas provides evidence that this development is

intentional. That is, Rodney Scott, the former Chief of the U.S. Border

Patrol, testifies that he was instructed to stand down from re-instating

the Title 42 program for UAC the day after the stay preventing that re-

instatement was lifted—18 days before the February 2021 Order created

a backdated exception for UAC. ECF No. 69 at 37–38. When Scott asked

the Acting Commissioner of CBP questions about the latest instruction

to stand down, he was not answered. Id. at 38. Scott testifies that this

represents a “significant departure from well-established practices and

protocols,” which would have included the Chief “in detailed briefings

and deliberations to facilitate informed decision-making prior to

implementing a significant policy decision such as this.” Id.

It is generally arbitrary or capricious for an agency to depart from a

prior policy sub silentio, so an agency’s departure from a prior policy

must have good reasons. FCC v. Fox Television Stations, Inc., 572 U.S.

489, 510 (2014). That is, an agency has discretion to alter course, but it

must give a reasonable explanation for doing so—the Government failed

to do so here. Id.

Thus, the Court concludes that Texas has demonstrated a departure

from a prior policy sub silentio, which further demonstrates that the

Government failed to engage in reasoned decisionmaking. Its actions are

therefore arbitrary or capricious.

b. No Meaningful Consideration of Texas’s Reliance Interest

When an agency changes course, it must consider whether there was

legitimate reliance on the status quo prior to the change. As directed by

the Supreme Court, “[i]t would be arbitrary and capricious to ignore

such matters.” Regents, 140 S. Ct. at 1913 (citing Encino Motorcars, LLC

v. Navarro, 136 S. Ct. 2117, 2126 (2016)).

Here, neither the July 2021 nor the August 2021 Orders demonstrate

any sort of specific, meaningful consideration of Texas’s potential

reliance interests. For example, the July 2021 Order merely states that

the statistical numbers “indicate that the risk of overburdening the local

healthcare systems by UC presenting with severe COVID-19 disease

remains low.” 86 Fed. Reg. at 38,720; ECF No. 69 at 18. But that alone

does not indicate that the agency considered all of Texas’s potential

reliance interests. In fact, the July 2021 Order considers only the local

healthcare systems—nothing more. The local communities and border

states are composed of much more than just healthcare systems.

And because the August 2021 Order merely incorporates the July

2021 Order, it commits the same fatal flaw. Thus, because the July 2021

Order failed to fully explore Texas’s reliance interests, the August 2021

Order cannot be said to have explored those same interests. At most, the

August 2021 Order states that “local and destination communities” are

protected from elevated risks of COVID-19 transmission. 86 Fed. Reg.

at 42,838; ECF No. 69 at 29. But as stated above, and as demonstrated

from the irreparable injuries that Texas is currently experiencing, the

July 2021 and August 2021 Orders fail to offer any sort of reasoned

decisionmaking. And “[g]iven the Supreme Court’s explanation that

border states ‘bear[] many of the consequences of unlawful immigration,’

one would expect a ‘reasonable and reasonably explained’ [order]” to

explore those issues and reliance interests much more in depth.15 Texas

v. Biden, 20 F.4th 928, 989 (5th Cir. 2021) (internal citations omitted).

Accordingly, the Court concludes that Texas has demonstrated a

likelihood of success that the July 2021 and August 2021 Orders are

arbitrary or capricious in violation of the APA.16

15To skirt the issue of “state reliance interests,” the Government argues that Texas

must specify specific reliance interests. But Regents is clear, “consideration [of any

reliance interests] must be undertaken by the agency in the first instance.” 140 S. Ct.

at 1913–14 (emphasis added). Thus, if the agency fails to (meaningfully) consider

reliance interests, “[t]hat alone is fatal.” Texas, 20 F.4th at 989. As the Government

understands, “[w]hen an agency changes course . . . it must ‘be cognizant that

longstanding policies may have engendered serious reliance interests that must be

taken into account.’” Regents, 140 S. Ct. at 1913 (quoting Encino Motorcars, 136 S. Ct.

at 2126.

16Although Texas might be correct on the merits, the Court cannot conclude—

based on the current record before the Court—that Texas has demonstrated a

substantial likelihood of success that the Government is: (1) excepting families from

Title 42 under a de facto policy and (2) failing to comply with its mandatory duty to

detain. To support these claims, Texas relies on statistical “inferences.” See, e.g., ECF

No. 26 at 19. But without any concrete facts demonstrating that the Government is

operating under a de facto policy, rather than agency discretion, or failing to comply

with its mandatory duty to detain, Texas’s claim for a mandatory injunction must fail.

See ECF No. 67. The Court will therefore DENY Texas’s Motion for a Preliminary

Injunction to the extent that Texas requests that the Government’s de facto policy be

2. Substantial Threat of Irreparable Injury

To satisfy the second preliminary injunction factor, Texas must

demonstrate a likelihood of immediate and substantial irreparable

injury that monetary damages would not fully repair. Texas, 86 F. Supp.

3d at 672 (citing O’Shea v. Littleton, 414 U.S. 488, 502 (1974)); Brink’s

Inc. v. Patrick, No. 3:14-CV-775-B, 2014 WL 2931824, at *6 (N.D. Tex.

June 27, 2014) (Boyle, J.); see also Burgess v. FDIC, 871 F.3d 297, 304

(5th Cir. 2017) (noting that an injury is “irreparable” when the injury

“cannot be undone through monetary remedies”). To satisfy this factor,

Texas must show more than an unfounded fear or the possibility of some

remote future injury. Id.

Texas alleges the harm has occurred and continues to occur every

day as UAC come across the border at increasing rates. ECF No. 68 at

25–29, 36–38. Couple that with the COVID-19 pandemic—especially the

highly contagious nature of the disease—and Texas further argues that

there is harm in perpetuating a public health crisis. Id. at 27–28. The

October 2020 Order expressly found that several cities and states at or

near the borders bear the brunt of the increased rates of aliens, which

has “strained” the states’ “healthcare and public health systems.” 85

Fed. Reg. at 65,812; ECF Nos. 69 at 13. The August 2021 Order also

recognizes that the “flow of migration directly impacts not only border

communities and regions, but also destination communities and

healthcare resources on both.” 86 Fed. Reg. at 42,835; ECF No. 69 at 26.

Texas provides concrete examples of the harm it is incurring. See

ECF No. 69 at 91–98 (explaining the costs of providing education to USC

that is not recoverable from the federal government); Id. at 99–110

(explaining the costs of issuing limited-term drivers licenses or personal

identification certificates); Id. at 84–87 (explaining the costs of providing

healthcare services); Id. at 111–13 (explaining the costs and burdens

placed on the state’s criminal justice system).

enjoined and that “Defendants be ordered to detain those aliens ‘for a period sufficient

to determine, . . . with the guidance of the Department of Health and Human Services,

that those aliens are not carriers’ of COVID-19.” ECF No. 89 at 27; see also ECF No.

68 at 39 (same). If Texas is correct on the merits, however, the Court would be deeply

disturbed that the Government is operating under a de facto policy during a pandemic.

In addition, Texas is also suffering injuries to the State’s interests as

parens patriae. To this point, “the Supreme Court has determined that

‘law enforcement and public safety interests’ can constitute irreparable

harm.” Texas v. United States, --- F. Supp. 3d. ----, 2021 WL 3683913, at

*59 (S.D. Tex. Aug. 19, 2021) (citing Maryland v. King, 567 U.S. 1301,

1303 (2012). Here, Texas’s parens patriae injuries are grounded in the

“harms that Texas’s local governments, each exercising Texas’s

delegated police power to ensure the health and welfare of their citizens”

and in the harms to Texas healthcare workers. ECF No. 68 at 36–37.

Accordingly, the Court concludes that Texas has demonstrated a

likelihood of irreparable harm that monetary damages would not repair.

3. The Balance of the Equities and the Public’s Interest

The Court now considers the balance-of-equities and public-interest

elements together. See Nken v. Holder, 556 U.S. 418, 435 (2009)

(merging these two elements when the Government is the nonmoving

party); Texas v. United States, 809 F.3d 134, 187 (5th Cir. 2015) (same).

Specifically, the Court considers whether “the threatened injury

outweighs any harm that may result from the injunction to the non-

movant” and whether “the injunction will not undermine the public

interest.” Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1051, 1056

(5th Cir. 1997). These requirements recognize that an injunction is

never a “matter of right” and is instead “a matter of sound judicial

discretion.” Yakus v. United States, 321 U.S. 414, 440 (1944).

To weigh the equities, the Court balances “the competing claims of

injury and [] consider[s] the effect on each party of the granting or

withholding of the requested relief.” Winter v. Nat. Res. Def. Council,

Inc., 555 U.S. 7, 24, (2008). To determine whether an injunction would

undermine the public interest, a court considers the public interests that

may be injured and those that may be served by granting or denying the

injunction. Texas, 2021 WL 3683913, at *59 (collecting cases).

Texas asserts that balancing the harms favors granting a

preliminary injunction because Texas’s harm is immediate, irreparable,

and continues to occur. ECF No. 68 at 36–38. Conversely, the

Government faces essentially no harm from resuming compliance with

the October 2020 Order to the extent that it applies to unaccompanied

alien children. See 86 Fed. Reg. at 42,830; ECF No. 69 at 21 (explaining

how the Title 42 process “remains necessary at this time” for single

adults and family units).

The Government responds that Texas primarily challenges the

CDC’s actions implementing and administering laws that protect the

public health. ECF No. 79 at 59. The Government further argues that

an injunction “would harm DHS’s interests in carrying out an efficient

and effective immigration system.” Id. at 60. This argument, however,

has been rejected by other courts. For example, the Fifth Circuit has

already “concluded that any inefficiency resulting from an injunction

inhibiting the Executive’s ability to prioritize certain immigration-

enforcement actions is ‘outweighed by the major financial losses [that]

states face.’” Texas, 2021 WL 3683913, at *60 (citing Texas, 809 F.3d at

187.

And as already discussed above, Texas has experienced, and will

continue to experience, significant financial loss. Furthermore, the

injunction does nothing more than require the Executive to expend its

resources in a manner consistent with the APA—i.e., a lawful manner.

Thus, because the Government has no “interest in the perpetuation of

unlawful agency action,” the ongoing and future injuries to Texas

outweigh any harms to the Government. League of Women Votes of U.S.

v. Newby, 838 F.3d 1, 12 (D.C. Cir. 2016).

More to the point, “the public is served when the law is followed.”

Daniels Health Scis., L.L.C. v. Vascular Health Scis., L.L.C., 710 F.3d

579, 585 (5th Cir. 2013). Texans have a significant interest in

maintaining the health and safety of their state. And the fact that the

Government has a significant interest in implementing our immigration

system without alteration does not change the analysis. Thus, because

the Court has already concluded that the July 2021 and August 2021

Orders violate the APA—to the extent that they except unaccompanied

alien children from the Title 42 procedures solely on their status as

unaccompanied alien children—the public is “served if the Executive

Branch is enjoined from implementing and enforcing a policy that

instructs officials to violate a congressional command.” Texas, 2021 WL

368913, at *60.

Accordingly, because the public has an “interest in stemming the flow

of illegal immigration,” the public interest favors an injunction. United

States v. Escobar, No. 2:17-CR-529, 2017 WL 5749620, at *2 (S.D. Tex.

Nov. 28, 2017) (citing United States v. Martinez-Fuerte, 428 U.S. 543,

556–58 (1976)). The Court therefore concludes that the balance of the

equities weighs in favor of an injunction.

CONCLUSION

Nearly 70 years ago, the Supreme Court aptly observed that the

political nature of immigration generally removes it from the ambit of

judicial oversight:

It is pertinent to observe that any policy toward aliens is

vitally and intricately interwoven with contemporaneous

policies in regard to the conduct of foreign relations, the

war power, and the maintenance of a republican form of

government. Such matters are so exclusively entrusted to

the political branches of government as to be largely

immune from judicial inquiry or interference.

Harisiasdes v. Shaugnessy, 342 U.S. 580, 588–89 (1952) (Jackson, J.);

see also, e.g., ROBERT DALLEK, FLAWED GIANT: LYNDON JOHNSON AND HIS

TIMES 1961–1973 227–28 (1998) (discussing negotiations between the

legislative and the executive branch regarding immigration legislation

and quoting President Lyndon Johnson as telling Speaker Jon

McCormack that “[t]here is no piece of legislation before Congress that

in terms of decency and equity is more demanding of passage than the

Immigration bill”).

The problem is that this statement harkens back to a quaint age

when our republican form of government included a legislature that

legislated. And based on how they legislated, those members would then

be held accountable by their constituents each election cycle. See

Speaker Sam Rayburn, quoted in D.B. HARDEMAN & DONALD C. BACON,

RAYBURN: A BIOGRAPHY 429 (1987) (“A [politician] who is not willing to

get out and defend what he has done will ultimately find himself in poor

shape politically.”). It is precisely because of the political accountability

of the issue that Justice Jackson recognized judicial oversight is limited.

But for better or worse, these decisions are now decided by

individuals within the administrative state with no political

accountability. And because these administrative decisions are housed

in the Executive Branch, all roads—for better or worse—lead back to the

President of the United States. Here, the President has (arbitrarily)

excepted COVID-19 positive unaccompanied alien children from Title 42

procedures—which were purposed with preventing the spread of

COVID-19. As a result, border states such as Texas now uniquely bear

the brunt of the ramifications. Yet, while policy decisions are beyond

judicial review, those agency actions that are “arbitrary, capricious, . . .

or otherwise not in accordance with law” will be set aside.

ORDER

For the foregoing reasons, the Court ORDERS that the

Government’s Motion to Dismiss (ECF No. 76) is GRANTED in part

and DENIED in part. The Court thus DISMISSES Claims E and F.

Further, the Court GRANTS in part Texas’s Renewed Motion for

Preliminary Injunction (ECF No. 67). Thus, the Court ORDERS that:

1. Defendants and all their respective officers, agents, servants,

employees, attorneys, and other persons who are in active concert

or participation with them are hereby ENJOINED and

RESTRAINED from enforcing the July 2021 and August 2021

Orders to the extent that they except unaccompanied alien

children from the Title 42 procedures based solely on their status

as unaccompanied alien children.

2. Nothing in this Preliminary Injunction requires DHS to take any

immigration or removal action nor withhold its statutory

discretion towards any individual that it would not otherwise

take.

3. This Preliminary Injunction shall remain in effect pending a final

resolution of the merits of this case or until further Order from

this Court, the United States Court of Appeals for the Fifth

Circuit, or the United States Supreme Court.

4. The Court STAYS the applicability of this Memorandum Opinion

and Order for 7 days to allow the federal government time to seek

emergency relief at the appellate level.

SO ORDERED on this 4th day of March, 2022.

Dave 7] retina

Mark T. Pittman

UNITED STATES DISTRICT JUDGE

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