Huisha-Huisha v. Mayorkas, 21-100 (EGS) (D.D.C. November 15, 2022) involved an order issued under Title 42 by the Centers for Disease Control and Prevention (“CDC”) in August 2021. The CDC stated that the order was necessary during the COVID-19 public health emergency. The order prohibited the introduction of covered non-citizens, which was defined to include “family units,” into the United States along the U.S. land and adjacent coastal borders. In its decision, the United States District Court for the District of Columbia referred to the process developed by the CDC and implemented by the August 2021 Order as the “Title 42 policy.”
The plaintiffs, a group of asylum-seeking families who fled to the United States, alleged that the Title 42 policy was arbitrary and capricious because the CDC failed to apply the least restrictive means standard when authorizing the policy; the policy did not rationally serve its stated purpose in view of the alternatives; and, the CDC failed to consider the harm the policy would inflict on impacted individuals.
The United States District Court for the District of Columbia found that the August 2021 Order was arbitrary and capricious due to the CDC’s failure to acknowledge and explain its departure from past practice. Reasoned decision-making requires that when departing from precedents or practices, an agency must offer a reason to distinguish them or explain its apparent rejection of its approach. The CDC issued a Final Rule in 2017 clarifying that in all situations involving quarantine, isolation, or other public health measures, it seeks to use the least restrictive means necessary to prevent the spread of disease. The Court found that a plain reading of the August 2021 Order did not indicate that the CDC instituted the least restrictive means available.
The Court also found that the Title 42 policy was arbitrary and capricious because the CDC failed to consider the harm to migrants subject to expulsion. Consideration of the negative impacts that the policy would have on migrants was required by the least restrictive means standard. Additionally, the Administrative Procedure Act requires agencies to engage in reasoned decision-making. The Court rejected the defendant's argument that an agency must consider only those factors that are expressly mentioned within a statute or regulation. The Court found that the consequence of suspending immigration proceedings for all covered noncitizens was a relevant factor that the CDC should have considered.
The Court also found that the CDC’s failure to consider whether the processing of these noncitizens could safely take place outdoors as an alternative to the August 2021 order was arbitrary and capricious.
Agencies have an obligation to reexamine their approaches if a significant factual predicate changes. In this case, the relevant significant factual predicate change was the development and disbursement of COVID-19 vaccines, on-site rapid testing, and effective therapeutics. The Court found that the CDC failed to consider the availability of therapeutics that reduced the risk of hospitalization in its August 2021 Order. The CDC also failed to articulate an explanation as to why it could not have ramped up vaccinations and other available public health measures.
Finally, the Court found that the defendants failed to show that the risk of migrants spreading COVID-19 was a real problem. The Court noted that at the time the August 2021 order was issued, the rate of daily COVID-19 cases in the United States was almost double the rate in Mexico and substantially higher than the incidence rate in Canada. Additionally, the suspension of immigration under the Title 42 policy only covered approximately 0.1% of land border travelers. Therefore, the Court concluded that the Title 42 policy, as implemented by the August 2021 order, was arbitrary and capricious.
The Court granted the plaintiffs’ motion for partial summary judgment, vacated the Title 42 policy, and enjoined the defendants from applying the Title 42 policy with respect to the plaintiff class members.