Louisiana v. Centers for Disease Control & Prevention

603 F.Supp.3d 406

State of LOUISIANA et al.

v.CENTERS FOR DISEASE CONTROL & PREVENTION, et al.

CASE NO. 6:22-CV-00885

United States District Court, W.D. Louisiana, Lafayette Division.

Signed May 20, 2022

MEMORANDUM RULING

ROBERT R. SUMMERHAYS, UNITED STATES DISTRICT JUDGE

Twenty-four states (the "Plaintiff States") brought the present action seeking to enjoin the Centers for Disease Control ("CDC") from terminating the COVID-related restrictions on immigration enacted by the CDC pursuant to its authority under Section 265 of Title 42. They contend that the CDC's decision to terminate its Title 42 rules violates the Administrative Procedure Act ("APA"). They contend that the CDC failed to consider the effects of a Title 42 termination on immigration enforcement and the states. The instant matter before the Court is the Plaintiff States’ Motion for Preliminary Injunction [ECF No. 13]. The Court held a hearing on the parties’ legal arguments on May 13, 2022. The parties did not request an evidentiary hearing, but instead rely on the evidence previously filed into the record. The Court has considered the record, the parties’ arguments, and rules as follows.

I. FINDINGS OF FACT

A. The CDC's Title 42 Orders.

1. The Public Health Services Act, 42 U.S.C. § 265 (referred to as "Title 42"), empowers the CDC to enter appropriate regulations limiting immigration to combat the spread of serious communicable diseases:

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

2. On March 20, 2020, in response to the COVID-19 pandemic, the U.S. Department of Health & Human Services ("HHS") issued an Interim Final Rule ("IFR") amending the applicable regulations to create "an efficient regulatory mechanism to suspend the introduction of persons" to prevent COVID-19 spread into the U.S.¹ In doing so, the CDC invoked the good cause exception to the APA, citing "the national emergency caused by COVID-19."² However, the CDC expressly invited "comment on all aspects of this interim final rule, including its likely costs and benefits and the impacts that it is likely to have on the public health[.]"³

3. After receiving 218 comments during the 30-day comment window that closed April 24, 2020, the CDC published a final rule September 11, 2020. That rule "establishe[d] final regulations under which the [CDC] may suspend ... the introduction of persons into the United States for such period of time as the Director may deem necessary to avert the serious danger of the introduction of a quarantinable communicable disease into the United States."⁴ This Final Rule became effective October 13, 2020 (CDC's collective policies of excluding aliens are hereinafter referred to as the "Title 42 Orders.")

4. Concurrently with the March 2020 IFR, the CDC Director issued an order suspending the introduction into the United States of all "persons traveling from Canada or Mexico," except for "U.S. citizens, lawful permanent residents, and their spouses and children," and other limited exceptions⁵ (the "March 2020 Order").

5. The March 2020 Order provided that it would expire after 30 days unless renewed.⁶ In May, the 30-day renewal requirement was abandoned and instead replaced with a mandatory review of the policy's continued necessity every 30 days.⁷ In other words, the order would no longer automatically expire.

6. When the Final Rule became effective, CDC issued a new order, the "October 2020 Order."⁸ The October 2020 Order was "substantially the same as" prior orders, was subject to 30-day periodic reviews, and was to remain in force until CDC had "publish[ed] a notice in the Federal Register terminating this Order and its Extensions."⁹

7. On July 19, 2021, CDC issued a new order excepting unaccompanied children (the "July 2021 Order").¹⁰ The CDC subsequently suspended the October 2020 Order and incorporated by reference the July 2021 Order excepting unaccompanied children (the "August 2021 Order").¹¹ That order stated that "the flow of migration directly impacts not only border communities and regions, but also destination communities and healthcare resources of both."¹²

B. The Exceptions to the CDC's Title 42 Orders.

8. The August 2021 Order, like the prior Title 42 Orders, includes an exception for "[p]ersons whom customs officers determine, with approval from a supervisor, should be excepted from this Order based on the totality of the circumstances, including consideration of significant law enforcement, officer and public safety, humanitarian, and public health interests. DHS will consult with CDC regarding the standards for such exceptions to help ensure consistency with current CDC guidance and public health recommendations."¹³

9. According to Bias Nuñez-Neto, the Acting Assistant Secretary for Border and Immigration Policy at the Department of Homeland Security, the exception cited above has been used throughout the course of the pandemic in order to apply the normal Title 8 immigration enforcement procedures, rather than the Title 42 Order to certain situations.¹⁴

10. As to the individuals processed as exceptions from the Title 42 Orders during the first quarter of 2022, "655 out of 745 (88%) single adults from Northern Triangle countries who have been processed for expedited removal in the first quarter of this fiscal year have already been removed or are in the process of being removed. Seventy-two percent (537 out of 745) of single adults from the Northern Triangle processed for expedited removal in the first quarter of 2022 did not claim a fear and were subject to removal directly from CBP custody; another 16% (118 people) claimed fear of torture or prosecution, were detained by ICE as they went through the credible fear interview process, and were found not to have a credible fear and subject to removal. Just 90 out of 745 (12%) were referred for full removal proceedings under Section 1229a of Title 8 of the U.S. Code."¹⁵

C. The CDC's Termination Order.

11. On February 2, 2021, President Biden signed Executive Order 14010, in which he ordered that "[t]he Secretary of HHS and the Director of CDC, in consultation with [DHS], shall promptly review and determine whether termination, rescission, or modification of the [Title 42 orders] is necessary and appropriate."¹⁶

12. On March 11, 2022, CDC issued a new order (the "March 2022 Order") superseding the August 2021 Order.¹⁷ The March 2022 Order apparently was issued in response to litigation in Texas challenging Defendants’ practice of not applying Title 42 to unaccompanied alien children ("UAC").¹⁸ The March 2022 Order found that suspending entry of UACs was "not necessary to protect U.S. citizens."¹⁹

13. On April 1, 2022, CDC Director Walensky issued the Order Under Sections 362 & 365 of the Public Health Service Act²⁰ ("Termination Order"). The Termination Order claimed that it was "not a rule subject to notice and comment under the Administrative Procedure Act."²¹ It did so on two stated bases: the "good cause" and "foreign affairs" exceptions of 5 U.S.C. §§ 553(a)(1) and (b)(3)(B).²²

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

This Termination, like the preceding Orders issued under this authority, is not a rule subject to notice and comment under the Administrative Procedure Act (APA). Even if it were, notice and comment are not required because there is good cause to dispense with prior public notice and the opportunity to comment on this Termination. Given the extraordinary nature of an order under Section 265, the resultant restrictions on application for asylum and other immigration processes under Title 8, and the statutory and regulatory requirement that an CDC order under the authority last no longer than necessary to protect public health, it would be impracticable and contrary to the public interest and immigration laws that apply in the absence of an order under 42 U.S.C. § 265 to delay the effective date of this termination beyond May 23, 2022 for the reasons outlined herein. As explained, DHS requires time to institute operational plans to implement this order, including COVID-19 mitigation measures, and begin regular immigration processing pursuant to Title 8. In light of the August Order's significant disruption of ordinary immigration processing and DHS's need for time to implement an orderly and safe termination of the order, there is good cause not to delay issuing this termination or to delay the termination of this order past May 23, 2022.²³

15. As to the foreign affairs exception, the Termination Order states only that "this Order concerns ongoing discussions with Canada, Mexico, and other countries regarding immigration and how best to control COVID-19 transmission over shared borders and therefore directly ‘involve[s] ... a ... foreign affairs function of the United States;’ thus, notice and comment are not required."²⁴

16. The Termination Order states that the CDC's decision to issue the Order is based on its determination that "although the implementation of the CDC Orders to reduce the numbers of noncitizens held in congregate settings in POEs and Border Patrol stations has been part of the layered COVID-19 mitigation strategy used over the past two years, less burdensome measures are now available to mitigate the introduction,...