# State of Texas v. Biden

> District Court, N.D. Texas · March 4, 2022

URL: https://www.frixlaw.com/law-library/cases/10451304

## Case

- **Court:** District Court, N.D. Texas
- **Decided:** March 4, 2022
- **Opinion:** 100trialcourt
- **Cited by:** 0 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/10451304

## How later opinions describe it (automated extraction)

- 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
- noting that an injury is “irreparable” when the injury “cannot be undone through monetary remedies”
- 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

## Opinion text

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

37

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/10451304. Public record. Not legal advice.