Amicus Brief (State of Texas, Supporting Reversal) — Huisha-Huisha v. Mayorkas (2021-10-29)

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No. 21-5200 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE D.C. CIRCUIT 
 
Nancy Gimena Huisha-Huisha, et al., 
 
 
 
 
 
 
 
 
 
Plaintiffs-Appellees, 
v. 
Alejandro Mayorkas, et al., 
 
 
 
 
 
 
 
 
 
Defendants-Appellants, 
 
On Appeal from the United States District Court 
for the District of Columbia 
Case No. 1:21-cv-00100-EGS 
 
CORRECTED BRIEF FOR AMICUS CURIAE THE STATE 
OF TEXAS IN SUPPORT OF DEFENDANTS-APPELLANTS 
AND REVERSAL 
  
 
KEN PAXTON 
Attorney General of Texas 
 
BRENT WEBSTER 
First Assistant Attorney General 
 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1700 
Fax: (512) 474-2697 
JUDD E. STONE II 
Solicitor General 
 
RYAN S. BAASCH 
Assistant Solicitor General 
Ryan.baasch@oag.texas.gov 
 
LEIF A. OLSON 
Special Counsel 
 
Counsel for Proposed Intervenor-
Defendant the State of Texas 
 
 
 
 
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Table of Contents 
Page 
 
Table of Authorities .............................................................................................. iii 
Interest of Amicus Curiae the State of Texas ........................................................ vii 
Introduction ............................................................................................................ 1 
Background ............................................................................................................. 3 
A. 
Federal Regulation of the Entry of Aliens .................................................. 3 
B. 
Regulation of Contagious Diseases at the Borders .................................... 6 
C. 
The CDC Promulgates the Regulation and Orders Under Review ........... 8 
D. 
Procedural History ................................................................................... 9 
Argument.............................................................................................................. 10 
I. Defendants Are Likely to Succeed on the Merits .......................................... 11 
A. 
The Executive Has Statutory and Constitutional Authority to Expel 
Aliens Who Violate the CDC’s Orders. ........................................................... 11 
1. 
The Executive Had Statutory Expulsion Authority When Section 265 
Was Enacted, and Retains That Authority Now. .......................................... 11 
2. 
The Executive Has Constitutional Authority to Expel Aliens Who 
Violate the CDC’s Order. ............................................................................. 13 
B. 
Defendants Suspended the Right of Aliens to Enter and So Those Aliens 
No Longer Possess Any Defense to Immediate Removal. ................................ 15 
II. 
The Other Preliminary Injunction Factors Demonstrably  
Disfavor Plaintiffs. ............................................................................................ 20 
A. 
Plaintiffs Have Failed to Show Irreparable Harm. .................................. 20 
B. 
The Balance of Equities Disfavors Plaintiffs. .......................................... 22 
Conclusion ........................................................................................................... 24 
Certificate of Compliance ..................................................................................... 25 
Certificate of Service............................................................................................. 25 
 
 
 
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Table of Authorities 
 
Page(s) 
 
Cases: 
Babb v. Wilkie, 
140 S. Ct. 1168 (2020) ...................................................................................... 10 
Castro v. U.S. Dep’t of Homeland Sec., 
835 F.3d 422 (3d Cir. 2016) ................................................................................ 5 
Charlesbank Equity Fund II v. Blinds To Go, Inc., 
370 F.3d 151 (1st Cir. 2004) ............................................................................. 21 
Cuomo v. NRC, 
772 F.2d 972 (D.C. Cir. 1985) (per curiam) ......................................................20 
Davis v. Mich. Dep’t of Treasury, 
489 U.S. 803 (1989) ......................................................................................... 10 
Demore v. Kim, 
538 U.S. 510 (2003) ........................................................................................... 4 
Dep’t of Homeland Sec. v. Thuraissigiam, 
140 S. Ct. 1959 (2020) .................................................................... 3, 6, 12, 14, 21 
Drakes Bay Oyster Co. v. Jewell, 
747 F.3d 1073 (9th Cir. 2014) ...........................................................................20 
Ekiu v. United States, 
142 U.S. 651 (1892) ................................................................................. 3, 14, 17 
Fong v. United States, 
149 U.S. 698 (1893) ................................................................................... 1, 3, 13 
Kendall v. United States ex rel. Stokes, 
37 U.S. 524 (1838) ............................................................................................ 14 
Kleindienst v. Mandel, 
408 U.S. 753 (1972) ............................................................................................ 4 
United States ex rel. Knauff v. McGrath, 
181 F.2d 839 (2d Cir. 1950) .............................................................................. 12 
United States ex rel. Knauff v. Shaughnessy, 
338 U.S. 537 (1950) ..................................................................................... 13, 14 
Landon v. Plasencia, 
459 U.S. 21 (1982) .............................................................................................. 1 
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Lew Moy v. United States, 
237 F. 50 (8th Cir. 1916) ................................................................................... 17 
Mayor of New York v. Miln, 
36 U.S. (11 Pet.) 102 (1837) ................................................................................ 3 
New Prime Inc. v. Oliveira, 
139 S. Ct. 532 (2019) ...................................................................................10, 19 
Oceanic Steam Nav. Co. v. Stranahan, 
214 U.S. 320 (1909) ......................................................................................... 17 
Rotkiske v. Klemm, 
140 S. Ct. 355 (2019) ........................................................................................ 19 
Serono Labs., Inc. v. Shalala, 
158 F.3d 1313 (D.C. Cir. 1998) ................................................................... 22, 24 
Sotorios Targakis v. United States, 
12 F.2d 498 (5th Cir. 1926) .............................................................................. 17 
Texas v. Biden, 
2:21-cv-67 (N.D. Tex.) ..................................................................................... vii 
Texas v. Biden, 
4:21-cv-00579-P (N.D. Tex.) ........................................................................... vii 
Texas v. United States, 
1:18-cv-68 (S.D. Tex.) ...................................................................................... vii 
Texas v. United States, 
6:21-cv-3 (S.D. Tex.) ........................................................................................ vii 
Texas v. United States, 
6:21-cv-16 (S.D. Tex.) ...................................................................................... vii 
United States v. Texas, 
3:21-cv-173 (W.D. Tex.) ................................................................................... vii 
Va. Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 
259 F.2d 921 (D.C. Cir. 1958) .......................................................................... 22 
Wis. Gas Co. v. FERC, 
758 F.2d 669 (D.C. Cir. 1985) (per curiam) ...................................................... 21 
Yamataya v. Fisher, 
189 U.S. 86 (1903) ............................................................................................ 11 
 
 
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Constitutional Provisions, Statutes and Rules: 
U.S. Const. Art. II ........................................................................................ 2, 13, 15 
8 U.S.C.: 
 
§§ 1101 et seq.. ................................................................................................... 5 
 
§ 1152(c)-(e) ...................................................................................................... 5 
 
§ 1157 ................................................................................................................. 5 
 
§ 1158 ................................................................................................................. 5 
 
§ 1158(a)(1) ...................................................................................................... 19 
 
§ 1225(b)(2)(A) ............................................................................................... 12 
 
§ 1225(b)(2)(C) ............................................................................................... 12 
 
§ 1227(a) .......................................................................................................... 12 
 
§ 1229a ............................................................................................................ 12 
 
§ 1231 ............................................................................................................... 19 
 
§ 1231(b)(3)...................................................................................................... 19 
 
§ 1252 .............................................................................................................. 12 
42 U.S.C.: 
 
§ 243(a) ....................................................................................................... 8, 23 
 
§ 265 ................................................................................................ 1, 2, 7, 15, 16 
42 C.F.R. § 71.40(b)(1) ........................................................................................... 8 
85 Fed. Reg. 17,060-02 (Mar. 26, 2020)  ................................................................. 8 
Other Authorities: 
Act of March 3, 1891, ch. 551, § 1, 26 Stat. 1084 .................................................. 4, 5 
Act of February 5, 1917, ch. 29, § 19, 39 Stat. 874 .............................................. 4, 12 
Act of February 15, 1893, ch. 114, § 7, 27 Stat. 449 .............................................. 6, 7 
Congressional Research Service, Refugee Admissions and Resettlement 
Policy (Dec. 18, 2018) ......................................................................................... 5 
Control of Communicable Diseases; Foreign Quarantine: Suspension 
of Introduction of Persons into United States from Designated 
Foreign Countries or Places for Public Health Purposes, 85 Fed. 
Reg. 16,559 (Mar. 24, 2020) ............................................................................... 8 
Foreign Affairs Reform and Restructuring Act of 1998 ......................................... 19 
Funk and Wagnall’s New Standard Dictionary of the English 
Language  (1946) ......................................................................................... 16, 18 
H.R. Rep. No. 78-1364 (1944) ................................................................................. 7 
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Hidalgo County Judge Richard F. Cortez, Declaring a Local State of 
Disaster (Aug. 2, 2021) ..................................................................................... 22 
Immigration and Nationality Act, Pub. L. No. 82-414, § 101, 66 Stat. 
163 (1952) .......................................................................................................... 5 
Will Maslow, Recasting Our Deportation Law: Proposals for Reform, 56 
Colum. L. Rev. 309, 317 (1956) ........................................................................... 5 
Gerald L. Neuman, The Lost Century of American Immigration Law 
(1776-1875), 93 Colum. L. Rev. 1833 (1993) .................................................... 3, 4 
Public Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944) ........................ 7 
Congressional Research Service, Refugee Admissions and Resettlement 
Policy(Dec. 18, 2018) .......................................................................................... 5 
1 William Blackstone, Commentaries on the Laws of England 252 
(1765)  .............................................................................................................. 13 
2 Universal English Dictionary (John Craig ed. 1869) ........................................... 16 
Mayor Bruno J. Lozano, City of Del Rio Emergency Local Disaster 
Declaration (Sept. 17, 2021) .............................................................................. 23 
Order Suspending the Right To Introduce Certain Persons From 
Countries Where a Quarantinable Communicable Disease Exists, 
85 Fed. Reg. 65,806 (Oct. 16, 2020) ................................................................... 9 
Public Health Reassessment and Order Suspending the Right to 
Introduce Certain Persons from Countries Where a Quarantinable 
Communicable Disease Exists, 86 Fed. Reg. 42,828-02 (Aug. 5, 
2021) .................................................................................................................. 9 
Saikrishna B. Prakash & Michael D. Ramsey, The Executive Power Over 
Foreign Affairs, 111 Yale L.J. 231 (2001) ............................................................ 13 
Universal English Dictionary 1067 (John Craig ed. 1861) ...................................... 18 
Webb County Judge Tano E. Tijerina, Corrected Declaration of Local 
State of Disaster and Order (July 21, 2021) ........................................................ 23 
 
 
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Interest of Amicus Curiae the State of Texas 
Texas has a unique interest in border enforcement and in the outcome of this 
case. Multiple Texas border communities have declared states of disaster because of 
the surge of aliens who have crossed the border and who are infected with COVID-
19. Texas’ local and regional healthcare resources are also burdened by the costs of 
providing care for these aliens. And Texas is currently litigating a host of related 
immigration and other challenges against the federal government. See, e.g., Texas v. 
Biden, 4:21-cv-00579-P (N.D. Tex.) (whether federal government adequately using 
its public health authority to expel aliens); Texas v. United States, 1:18-cv-68 (S.D. 
Tex.) (DACA); Texas v. Biden, 2:21-cv-67 (N.D. Tex.) (Migrant Protection 
Protocols); Texas v. United States, 6:21-cv-3 (S.D. Tex.) (pause on removals); Texas 
v. United States, 6:21-cv-16 (S.D. Tex.) (prioritization of removal); United States v. 
Texas, 3:21-cv-173 (W.D. Tex.) (Texas authority to restrict transport of aliens). 
Texas, on her own behalf and on behalf of her citizens, files this brief as a friend 
of the Court to support Defendants’ authority to exclude from the United States 
aliens traveling from countries experiencing a communicable disease outbreak.  
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INTRODUCTION 
“[A]n alien seeking initial admission to the United States requests a privilege 
and has no constitutional rights regarding his application.” Landon v. Plasencia, 459 
U.S. 21, 32 (1982). And so, as a default, “[t]he right of a nation to expel or deport 
foreigners who have not been naturalized, or taken any steps towards becoming 
citizens of the country . . . [is] absolute and unqualified.” Fong v. United States, 149 
U.S. 698, 707 (1893) (emphasis added). The United States has given aliens the 
opportunity to apply for many statutory privileges (i.e., visas or asylum). But as 
statutory—not constitutional—privileges, they may be eliminated or suspended. 
That truism describes—and decides—this entire case. Plaintiffs are a group of 
aliens who unlawfully entered this country, have no legal status, and are now 
resisting expulsion. They claim that multiple statutory protections may give them a 
right to remain. But Congress has the power to turn off those protections. And here 
Congress unequivocally and explicitly granted Defendant the Center for Disease 
Control and Prevention(“CDC”) the power to do just that when necessary to 
protect Americans from a communicable disease. 42 U.S.C. § 265 (“Section 265”). 
There is no dispute that COVID-19 is a communicable disease. And there is no 
dispute that the CDC took the action at issue in this case under Section 265 to protect 
Americans from aliens who may be carrying COVID-19. That means that Plaintiffs’ 
statutory protections from removal are suspended and Plaintiffs have no plausible 
basis remaining to defend against immediate expulsion.  
The district court erred, however, because it addressed only whether Section 265 
“evinces [an] intention to grant the Executive the authority to expel or remove 
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persons from the United States.” JA105. That answer to that question is irrelevant 
because the Executive1 already has authority to expel or remove2 aliens. Congress has 
granted that authority under a host of other statutes. And the Executive also has 
expulsion power under Article II of the Constitution. The relevant question is 
instead whether Section 265 granted the Executive authority to suspend the 
statutory defenses that Plaintiffs may use to resist expulsion. Section 265 plainly 
does, see 42 U.S.C. § 265 (conferring authority to determine “that a suspension of 
the right to introduce [aliens] is required in the interest of the public health”), and 
the Executive has plainly exercised that power.  
The district court also erred in its grant of a preliminary injunction because the 
equities do not favor Plaintiffs. They entered illegally, and took the chance that they 
would be returned in accordance with our nation’s laws. The fact that their gamble 
might fail was a risk all along, and it does not constitute irreparable injury. In 
addition, aliens with COVID-19 impose extraordinary harms and costs on Texas 
(and other border states), draining the resources of local communities and exposing 
Americans to heightened risk of COVID-19. Protection of the health and well-being 
of border communities and the resources of local and regional healthcare systems 
easily outweighs any harm from expelling aliens here unlawfully.  
 
1 For simplicity, Texas’ brief uses the term “the Executive” to refer to the President 
as well as his subordinate administrative officers in charge of federal public health 
and immigration law. Nothing in this case turns on the identity of one department or 
its head versus another. 
2 Unless context indicates otherwise, Texas’ brief uses the terms “expel” and 
“remove” interchangeably. 
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This Court should vacate the injunction. 
BACKGROUND 
A. Federal Regulation of the Entry of Aliens 
Every sovereign has inherent, unqualified authority to exclude aliens or to admit 
them on the conditions it deems appropriate. See Ekiu v. United States, 142 U.S. 651, 
659 (1892). (“[E]very sovereign nation has the power . . . to forbid the entrance of 
foreigners within its dominions, or to admit them only in such cases and upon such 
conditions as it may see fit.”). Every sovereign likewise has the inherent, unqualified 
authority to expel new entrant aliens who lack legal status. See Fong v. United States, 
149 U.S. 698, 707 (1893) (“The right of a nation to expel or deport foreigners who 
have not been naturalized, or taken any steps towards becoming citizens of the 
country . . . [is] absolute and unqualified.”). To enter or remain, an alien must rely 
on a statutory privilege (like asylum or a visa) that Congress has granted as a matter 
of grace. See Dep’t of Homeland Sec. v. Thuraissigiam, 140 S. Ct. 1959, 1981-82 (2020). 
For approximately 100 years, the federal government did not meaningfully 
regulate alien entry. Instead, that role was filled by our federal system’s co-
sovereigns: the States. See Gerald L. Neuman, The Lost Century of American 
Immigration Law (1776-1875), 93 Colum. L. Rev. 1833 (1993); Mayor of New York v. 
Miln, 36 U.S. (11 Pet.) 102 (1837). Among other things, States regulated the entry of 
aliens “suspected of carrying contagious diseases,” including through “expulsion of 
travelers from” places where contagious diseases were prevalent. Neuman, supra, at 
1859, 1861. And although the States usually reserved punishment for those who 
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brought aliens illegally (and not the aliens themselves), “direct punishment was more 
frequently threatened against travelers evading quarantine restrictions.” Id. at 1883 
(emphasis added). 
In 1875 Congress began to comprehensively regulate entry of aliens. See 
Kleindienst v. Mandel, 408 U.S. 753, 761 (1972). From very early on, it flatly barred 
entrance of aliens suffering from a “dangerous contagious disease.” See Act of 
March 3, 1891, ch. 551, § 1, 26 Stat. 1084 (“1891 Immigration Act”). And for decades 
Congress also invested the Executive with significant, nearly unreviewable 
discretion to rapidly expel aliens present illegally. See, e.g., Act of February 5, 1917, 
ch. 29, § 19, 39 Stat. 874, 890 (“1917 Immigration Act”) (“[A]t any time within 
three years after entry, any alien who shall have entered the United States . . . at any 
place other than one designated as a port of entry for aliens . . . shall, upon the warrant 
of the Secretary of Labor, be taken into custody and deported. . . . [T]he decision of 
the Secretary of Labor shall be final.”);1891 Immigration Act § 8 (“All decisions 
made by the inspection officers or their assistants touching the right of any alien to 
land, when adverse to such right, shall be final unless appeal be taken to the 
superintendent of immigration, whose action shall be subject to review by the 
Secretary of the Treasury.”); Demore v. Kim, 538 U.S. 510, 538 (2003) (O’Connor, 
J., concurring) (“until 1952 [Congress] made no express provision for judicial 
review” of “deportation or exclusion decisions”). But from the beginning Congress 
also granted rights to certain classes of aliens. See, e.g., 1891 Immigration Act § 1 
(restricting many classes of aliens, but leaving door open to “persons convicted of a 
political offense . . . by the laws of the land whence he came”). It did not, however, 
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grant rights to aliens who evaded border officials to enter illegally. Instead, those 
persons were “immediately sent back on the vessel by which they were brought in.” 
Id. § 10. 
Gradually, federal immigration regulation became more permissive. In 1952 
Congress passed the Immigration and Nationality Act (“INA”), Pub. L. No. 82-414, 
§ 101, 66 Stat. 163 (1952) (codified as amended at 8 U.S.C. §§ 1101 et seq.). Under 
the INA, as amended, the United States awards hundreds of thousands of visas 
annually. See 8 U.S.C. § 1152(c)-(e). The United States also admits tens of thousands 
of refugees per year through a consultative process between the President and 
Congress. See 8 U.S.C. § 1157; Congressional Research Service, Refugee Admissions 
and Resettlement Policy at 2 (Dec. 18, 2018).3 And the United States allows an 
uncapped number of aliens to affirmatively apply for asylum or to defensively seek it 
in a removal hearing. 8 U.S.C. § 1158. (Asylum seekers definitionally differ from 
refugees by virtue of their existing presence in the United States.) 
In addition, whereas initially the Executive had nearly unreviewable authority to 
rapidly expel aliens without any significant procedural protections, see Castro v. U.S. 
Dep’t of Homeland Sec., 835 F.3d 422, 436 (3d Cir. 2016) (describing period up until 
1952 where “immigration law rendered final . . . the Executive’s decisions to admit, 
exclude, or deport aliens”), in the second half of the 20th century Congress began 
to confer significant adjudicative rights on aliens. See Will Maslow, Recasting Our 
Deportation Law: Proposals for Reform, 56 Colum. L. Rev. 309, 317 (1956) (explaining 
 
3 https://sgp.fas.org/crs/misc/RL31269.pdf. 
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how the INA “for the first time prescribed a hearing before a[n] [administrative 
officer] to make determinations, including orders of deportation”) (quotation marks 
omitted). Now, by statute, “[t]he usual removal process involves an evidentiary 
hearing before an immigration judge, and at that hearing an alien may attempt to 
show that he or she should not be removed,” such as by showing he is eligible for 
asylum. Thuraissigiam, 140 S. Ct. at 1964. Aliens who lose in front of the immigration 
judge also have significant appeal rights, first to the Board of Immigration Appeals 
and then a federal court of appeals. Id. Aliens subject to removal are generally 
detained “at considerable expense.” Id. 
B. Regulation of Contagious Diseases at the Borders 
In 1893 Congress enacted the predecessor version of Section 265. Substantively, 
it closely resembled the current version of the law. As noted supra at 4, federal 
immigration law already barred entry of aliens with contagious diseases. But the 1893 
Act went further and gave the Executive broad discretion to determine that all aliens 
(and property) from a specific country should be barred. Act of February 15, 1893, 
ch. 114, § 7, 27 Stat. 449, 452 (“1893 Public Health Act”). Specifically, if the 
Executive concluded that health exigencies warranted, he was granted authority to 
find “that a suspension of the right to introduce” aliens from certain countries was 
required and to “prohibit, in whole or in part, the introduction” of aliens from such 
countries. Id. In other words, in addition to barring entry of those that Congress had 
already declared inadmissible (i.e., those specific individuals with a contagious 
disease), this Act gave the Executive further power to bar entry of even those that 
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could claim some source of statutory right to enter if he concluded that the country 
they were migrating from was suffering from a contagious disease.  
The Act also recognized that States had primary jurisdiction over entry of aliens 
who might be carrying a contagious disease. Id. § 3. Congress accordingly directed 
federal health officials to “co-operate with and aid State and municipal boards of 
health in the execution and enforcement of the[ir] rules and regulations . . . to 
prevent the introduction of contagious or infectious diseases into the United States 
from foreign countries.” Id. But Congress also intended that State laws would 
provide a floor only. If federal officials deemed them “not sufficient,” then the 
Secretary of Treasury was directed to promulgate stricter rules to prevent 
introduction of contagious diseases. Id. The Act did not contain provisions regarding 
expulsion, but, as noted, federal immigration law already vested the Executive with 
essentially unreviewable authority to expel inadmissible aliens. And the States 
likewise exercised expulsion authority during this era. See supra at 3-4. 
In 1944, Congress enacted the current version of Section 265 as part of the Public 
Health Service Act, Pub. L. No. 78-410, 58 Stat. 682 (1944). Substantively, very little 
changed—Congress designed the current law to be “merely a restatement of the 
laws” that already existed. H.R. Rep. No. 78-1364 at 1-3, 25 (1944). Thus, the current 
version of Section 265 likewise gives the Executive authority to conclude that the 
public health requires a “suspension of the right to introduce” aliens from certain 
countries, and to “prohibit, in whole or in part, the introduction” of aliens from such 
countries. 42 U.S.C. § 265. The Executive also retains a similar relationship with the 
States: he is “authorized to accept from State and local authorities any assistance” 
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they may provide, he is directed to “assist States and their political subdivisions in 
the prevention and suppression of communicable diseases,” and he “shall cooperate 
with and aid State and local authorities in the enforcement of their quarantine and 
other health regulations.” 42 U.S.C. § 243(a). 
C. The CDC Promulgates the Regulation and Orders Under Review 
In March 2020, in light of the COVID-19 pandemic, the CDC and Department 
of Health and Human Services (“HHS”) issued an interim final rule to establish a 
procedure for implementing the Section 265 authority and issuing orders suspending 
the right of “introduction” of aliens from foreign countries. Control of 
Communicable Diseases; Foreign Quarantine: Suspension of Introduction of 
Persons into United States from Designated Foreign Countries or Places for Public 
Health Purposes, 85 Fed. Reg. 16,559 (Mar. 24, 2020). Among other things, that 
interim rule clarified that the “introduction” bar applies not just to those seeking to 
physically enter the United States, but also those who have already “physically 
crossed a border of the United States and are in the process of moving into the 
interior.” Id. at 16,563. In other words, aliens could not circumvent the 
“introduction” suspension merely by setting foot on U.S. soil before a government 
agent intercepted them; those who evaded border security were subject to immediate 
expulsion. Two days later, the CDC issued an order under the rule temporarily 
suspending the introduction of certain aliens traveling into the United States from 
Canada and Mexico. 85 Fed. Reg. 17,060-02 (Mar. 26, 2020).  
On September 11, 2020, the CDC and HHS issued a final version of the interim 
rule. See 42 C.F.R. § 71.40(b)(1). Since then, the CDC has issued multiple orders 
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under the rule continuing the suspension of the right to introduce certain aliens from 
Mexico and Canada and directing that aliens who enter in violation of the orders 
must be expelled. See Order Suspending the Right To Introduce Certain Persons 
From Countries Where a Quarantinable Communicable Disease Exists, 85 Fed. Reg. 
65,806, 65,812 (Oct. 16, 2020) (“The continued suspension of the right to introduce 
covered aliens requires the movement of all such aliens to the country from which 
they entered the United States, their country of origin, or another practicable 
location outside the United States, as rapidly as possible.”); Public Health 
Reassessment and Order Suspending the Right to Introduce Certain Persons from 
Countries Where a Quarantinable Communicable Disease Exists, 86 Fed. Reg. 
42,828-02, 42,829 (Aug. 5, 2021) (“The instant Order continues the suspension of 
the right to introduce ‘covered noncitizens.’”).  
D. Procedural History 
Plaintiffs brought suit in January 2021 on behalf of a putative class of aliens who 
entered unlawfully and who are subject to immediate expulsion under Defendants’ 
Section 265 Orders. Plaintiffs’ core theory is that they “must be given the 
opportunity to remain in the United States to pursue the statutory humanitarian 
protections Congress has provided.” JA47 ¶ 10. They claim that Defendants’ 
Orders under Section 265 violated statutes providing these rights, and specifically 
that “Title 42 of the U.S. Code does not authorize the expulsion of noncitizens from 
the United States.” JA61 ¶ 79. Plaintiffs moved for certification of a class of alien 
family units (defined as a family unit composed of at least one child and that child’s 
parent or legal guardian). JA65.  
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On September 16, 2021, the district court certified the class and granted a 
preliminary injunction. The court held that Section 265 likely does not “evince[] 
[an] intention to grant the Executive the authority to expel or remove persons from 
the United States.” JA105. And it preliminarily enjoined Defendants from subjecting 
the class to “expulsion without any opportunity to apply for asylum or withholding 
of removal.” JA114, 127. On September 30, 2021, this Court stayed the preliminary 
injunction pending appeal. ECF No. 1916334. On October 26, 2021, this Court 
denied Texas’ motion to intervene on appeal, but instructed that it may participate 
as an amicus. ECF No. 1919599. 
ARGUMENT 
When interpreting a statute, courts start with the text. See Babb v. Wilkie, 140 S. 
Ct. 1168, 1172 (2020) (“Which [statutory] interpretation is correct? To decide, we 
start with the text of the statute.”). The text is interpreted according to the plain 
meaning of the words at the time of enactment. See also, New Prime Inc. v. Oliveira, 
139 S. Ct. 532, 539 (2019). And it is also “a fundamental canon of statutory 
construction that the words of a statute must be read in their context and with a view 
to their place in the overall statutory scheme.” Davis v. Mich. Dep’t of Treasury, 489 
U.S. 803, 809 (1989). These interpretive tools demonstrate that the Executive has 
ample sources of removal authority and that when he exercises his Section 265 
authority to “suspend” the “right” to “introduce aliens,” aliens subject to that 
order have no remaining defense to immediate expulsion. 
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I. Defendants Are Likely to Succeed on the Merits 
A. The Executive Has Statutory and Constitutional Authority to 
Expel Aliens Who Violate the CDC’s Orders. 
The district court’s core error was to enjoin Defendants from expelling Plaintiffs 
under the view that Section 265 does not “authorize[] [the Executive] to expel 
persons.” JA111. That conclusion is irrelevant. The Executive has ample other 
sources of expulsion authority, including statutory and constitutional sources. 
1. The Executive Had Statutory Expulsion Authority When Section 
265 Was Enacted, and Retains That Authority Now. 
Soon after Congress began regulating immigration, it granted the Executive 
substantial statutory expulsion authority. For example, in 1888 Congress provided 
that whenever the Secretary of the Treasury was “satisfied” that an alien entered 
the country in violation of the federal prohibition on alien entry to perform contract 
labor, and it was “within the period of one year after landing or entry,” the Secretary 
could take the alien into custody and “return[] [him] to the country from whence he 
came.” Yamataya v. Fisher, 189 U.S. 86, 94 (1903) (describing the state of the law). 
In 1891 Congress broadened the categories of aliens not allowed to enter, and 
provided that any alien who entered in violation “may be returned . . . at any time 
within one year thereafter.” 1891 Immigration Act § 11. That was the state of the law 
when Congress enacted the 1893 Public Health Act, so, if the Executive sought to 
expel someone at that time, he had ample statutory authority without any need to 
resort to the Section 265 predecessor. 
The state of play was similar in 1944, when the current version of Section 265 
was enacted. The 1917 Immigration Act provided that “all aliens brought to this 
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12 
country in violation of law shall be immediately sent back . . . to the country whence 
they respectively came . . . unless in the opinion of the Secretary of Labor immediate 
deportation is not practicable or proper.” 1917 Immigration Act § 18. And it 
provided that illegally present aliens, including “any alien who shall have entered the 
United States . . . at any place other than one designated as a port of entry for 
aliens . . . shall, upon the warrant of the Secretary of Labor, be taken into custody and 
deported.” Id. § 19. The Secretary’s decision was deemed “final” by law. Id. 
Materially the same framework for expulsion was on the books when Congress 
enacted current Section 265. See, e.g., United States ex rel. Knauff v. McGrath, 181 
F.2d 839, 841 (2d Cir. 1950). So the Executive likewise at that point did not need to 
rely on Section 265 if he sought to expel someone.   
Today too, the Executive has ample sources of statutory expulsion authority and 
does not need to rely on Section 265 to expel aliens. For example, current law 
provides that an alien “shall, upon the order of the Attorney General, be removed if 
the alien” fits into one of a number of categories, including if the alien is “present in 
the United States in violation of [the immigration code] or any other law of the 
United States.” 8 U.S.C. § 1227(a). The Executive can also “return” an alien who 
has arrived on land and who is “not clearly and beyond a doubt entitled to be 
admitted” during the pendency of removal proceedings. Id. § 1225(b)(2)(A), (C). Of 
course, Congress has also granted aliens significant rights to resist expulsion, 
including a right to seek asylum as a defense to removal, Thuraissigiam, 140 S. Ct. at 
1964, a hearing before an immigration judge, see 8 U.S.C. § 1229a, and a right to 
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13 
judicial review, id. § 1252. But, as explained infra at 15-20, an order under Section 
265 suspends those rights. 
2. The Executive Has Constitutional Authority to Expel Aliens Who 
Violate the CDC’s Order. 
In addition, the Executive possesses independent Constitutional authority to 
expel aliens. 
The Constitution vests the President with all “Executive Power.” U.S. Const. 
Art. II. At the Founding “Executive Power” was understood to include a host of 
foreign affairs prerogatives exercised by the King. See, e.g., Saikrishna B. Prakash & 
Michael D. Ramsey, The Executive Power Over Foreign Affairs, 111 YALE L.J. 231 
(2001). Among those powers was the right to send home aliens “whenever the king 
sees occasion.” 1 William Blackstone, Commentaries on the Laws of England 252 
(1765). And English judges recognized that the “executive authority of a colony” 
likewise had power to expel aliens. See Fong, 149 U.S. at 709.  
The Supreme Court has recognized this inherent, Executive power in 
unequivocal terms. In United States ex rel. Knauff v. Shaughnessy, 338 U.S. 537 (1950), 
the Supreme Court addressed whether the Executive could exclude the German wife 
of a citizen who served in World War II (including without a hearing) upon the raw 
conclusion that her admission would be prejudicial to American interests. The 
immigration code already provided multiple bases for excluding aliens, but Congress 
further gave the Executive authority to add new ones “upon [a] finding that the 
interests of the United States required it.” Id. at 540. The Executive used this power 
to promulgate a regulation making aliens excludable without a hearing. Id. at 541. 
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The German wife was detained at Ellis Island under this regulation, and the Attorney 
General accepted the recommendation of an immigration official that she be 
permanently excluded because her admission would have prejudiced American 
interests. Id. at 539-40.  
The wife challenged the exclusion on the basis that the regulation was 
promulgated under an unconstitutional delegation of legislative power. Id. at 542.4 
But the Court concluded “there is no question of inappropriate delegation of 
legislative power involved here” because the right to exclude aliens “is inherent in 
the executive power to control the foreign affairs of the nation.” Id. Thus, Congress 
can “prescribe[] a procedure concerning the admissibility of aliens,” id., and it can 
direct the Executive to exclude certain aliens, but even if it does nothing the Executive 
can still lawfully take action to exclude or remove aliens. Id. at 542-43.5 
 
4 The wife obtained judicial review through “habeas corpus proceedings.” Knauff, 
338 U.S. at 540. Specifically, “[t]he habeas statute in effect during this time was 
broad in scope” and “authorized the federal courts to review whether a person was 
being held in custody in violation of any federal law, including immigration laws.” 
Thuraissigiam, 140 S. Ct. at 1976. That was the only way aliens could obtain judicial 
review during this era, when Congress did not expressly provide that removal 
decisions were reviewable. See supra at 4. But even when aliens were able to enter 
court under the habeas statute during the finality era, the court’s review was very 
narrow. See Ekiu, 142 U.S. at 663 (“The words of [the immigration law] are clear . . . 
and were manifestly intended to prevent the question of an alien immigrant’s right 
to land, when once decided adversely by an inspector, acting within the jurisdiction 
conferred upon him, from being impeached or reviewed, in the courts or 
otherwise.”). The current habeas statute contains “restrictions on the issuance of 
writs in immigration matters.” Thuraissigiam, 140 S. Ct. at 1976. 
5 The Executive does not, however, have the authority to ignore Congress’s laws 
requiring exclusion or expulsion of aliens. See Kendall v. United States ex rel. Stokes, 
37 U.S. 524 (1838) (“To contend that the obligation imposed on the President to see 
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* 
* 
* 
At every relevant point, the Executive has had ample sources of authority to 
expel aliens. Congress has granted him multiple expulsion authorities by statute, and 
he has always possessed expulsion authority under Article II. The Executive does 
not need to rely on Section 265 in order to expel aliens.  
B. Defendants Suspended the Right of Aliens to Enter and So Those 
Aliens No Longer Possess Any Defense to Immediate Removal.  
With the expulsion power properly framed, the merits question is easy. Aliens 
ordinarily have substantive and procedural statutory defenses to removal. But 
Section 265 authorizes the Executive to turn off (“suspend”) the application of 
those statutes. When the Executive does this, aliens become subject to his removal 
authority unqualified by any Congressional act that ordinarily would provide them a 
defense. That is clear under the plain statutory text as it was understood at the time 
of enactment. And the broader statutory structure of our immigration and public 
health laws confirms it. 
Section 265 provides as follows: 
Whenever the Surgeon General 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 Surgeon General, in accordance with regulations 
approved by the President, shall have the power to prohibit, in whole 
 
the laws faithfully executed, implies a power to forbid their execution, is . . . entirely 
inadmissible.”). 
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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 (emphasis added).  
The statute gives the Executive power to “suspend” the “right” to 
“introduce” aliens, and to “prohibit” the “introduction” of aliens. When the 
Executive “suspends” a “right,” to do something, he renders inoperative any right 
that previously existed to do that thing. That is how the concept of “suspension” 
has always been understood. See 2 Universal English Dictionary 815 (John Craig ed. 
1869) (to “suspend” something means to “to cause to cease for a time from 
operation or effect.”); Funk and Wagnall's New Standard Dictionary of the English 
Language 2432 (1946) (defining “suspend” as “to cause to cease for a time; hold 
back temporarily from operation”). So when the Executive uses his Section 265 
authority, he is turning off statutory rights. And Section 265 tells us which rights: the 
right to “introduce” foreign persons (aliens) or property. That much does not 
appear to be in dispute. 
The operative question in this case is whether an “introduction” is complete 
the second an alien crosses the border, or instead whether an “introduction” 
continues until some later time, i.e., when the alien obtains legal status. If it is the 
former, then an alien who circumvents border security achieves “introduction” and 
so Executive suspension of the “introduction” right may ostensibly not affect 
separate rights, such as to resist expulsion post-“introduction.” But if it is the 
latter—if an alien is still in the process of introduction after he crosses the border—
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then the Executive’s suspension still applies to the alien’s defenses to expulsion 
during that phase. 
Every interpretive principle demonstrates that it is the latter, and that an 
“introduction” within the meaning of Section 265 is not complete when an alien 
crosses the border, but continues until he has obtained some form of legal status. 
First, “introduction,” as regards aliens, was a term of art when Section 265’s 
predecessor was enacted. See, e.g., Oceanic Steam Nav. Co. v. Stranahan, 214 U.S. 
320, 342 (1909) (referring to Congress’s power to “forb[i]d[] the introduction of 
aliens”). And the concept was understood broadly to include acts that extended far 
beyond the mere crossing of borders. For example, in Lew Moy v. United States, 237 
F. 50 (8th Cir. 1916), individuals were prosecuted for a conspiracy to bring 
unauthorized aliens into the country. On appeal the defendants contended that the 
trial court erroneously admitted evidence of what transpired after the aliens had 
crossed the border, because in defendants’ view “the conspiracy was at an end” 
once the aliens “were brought across the international boundary.” Id. at 52. But the 
Eighth Circuit rejected this argument and held that “introduction” is not 
“consummate[d]” when aliens come “across the” border—instead, introduction 
includes the act of being “transport[ed]” deeper “into the interior.” Id. And that 
makes perfect sense, because at that time it was well-understood that an alien who 
had entered was in no different legal position than an alien seeking to enter, unless 
and until he received some form of officially recognized legal status. See Sotorios 
Targakis v. United States, 12 F.2d 498, 498 (5th Cir. 1926) (even an alien with a right 
to enter “is not lawfully admitted until after proper inspection”); Ekiu, 142 U.S. at 
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661 (alien taken off of steamship and placed in domestic “mission-house” pending 
determination of her right to remain was “in the same position, so far as regarded 
her right to land in the United States, as if she never had been removed from the 
steam-ship”). 
Second, dictionary definitions of the word “introduction” confirm that the word 
is broad and sweeps in acts beyond the mere crossing of a border. For example, at 
the time the 1893 Public Health Law was enacted the word “introduction” was 
defined to include “the act of bringing into a country,” Universal English Dictionary 
1067 (John Craig ed. 1861) (emphasis added), not merely the act of crossing a specific 
boundary. Dictionary definitions at the time that Section 265’s current version was 
enacted were likewise broad and extended far beyond the simple act of physical 
entrance. See Funk and Wagnall's New Standard Dictionary of the English Language 
(1946) (defining “introduce” as to “bring, lead, or put in; conduct inward; usher in; 
insert” and “introduction” as the “act of introducing, in any sense”). 
Third, other portions of the immigration statutes on the books when Section 
265’s predecessor was enacted confirm that Congress knew how to use more 
restrictive language to refer to the mere physical act of entrance instead of the 
broader concept of “introduction.” For example, the Immigration Act of 1891 
provided a penalty for “any person who shall bring into or land in the United States 
. . . any alien not lawfully entitled to enter.” 1891 Immigration Act § 6 (emphasis 
added). Congress could have used this language when it enacted Section 265’s 
predecessor in 1893. For example, it could have given the Executive power to 
“suspend the right to bring into or land” aliens, or the power to “prohibit, in whole 
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19 
or in part, the bringing into or landing” of aliens. Its decision not to use that 
language and to use the broader “introduction” term is telling. See Rotkiske v. 
Klemm, 140 S. Ct. 355, 361 (2019) (rejecting party’s statutory interpretation where 
“Congress has enacted statutes that expressly include the language [the party] asks 
us to read in”).  
Fourth, the broader legal context at the time Section 265 and its predecessor 
were enacted demonstrates that it would have been nonsensical for Congress to 
authorize the Executive to suspend only a right to cross the border while leaving in 
place alien “rights” to resist expulsion after an unlawful entry. That is because an 
alien who entered illegally did not have any rights to resist expulsion; the Executive 
had plenary, essentially unreviewable authority to expel any alien that physically 
crossed the border without a right. See supra at 4, 11-12. All of the laws that Plaintiffs 
claim protect them from expulsion, see JA50-51 ¶¶ 29-31 (listing the right to 
defensively claim asylum, 8 U.S.C. § 1158(a)(1), the right to “withholding of 
removal,” id. § 1231(b)(3), and rights under the Foreign Affairs Reform and 
Restructuring Act of 1998, see 8 U.S.C. § 1231 note), were enacted after Section 265. 
Plaintiffs’ arguments would not have even been conceivable when Section 265 was 
enacted because Plaintiffs would have had no colorable right to resist expulsion, 
regardless of what the word “introduction” means. See Oliveira, 139 S. Ct. at 539 
(statute must be interpreted as understood at enactment).   
In sum, when the Executive suspends the right to introduce aliens he suspends 
not only the rights they may claim to physically enter the country, he also suspends 
defenses they may have to resist expulsion after illegal entry. Plaintiffs did enter 
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20 
illegally, Defendants’ Section 265 Orders suspended the defenses they may have had 
against expulsion, and Plaintiffs are now subject to immediate removal. 
II. The Other Preliminary Injunction Factors Demonstrably Disfavor 
Plaintiffs. 
Appellants’ opening brief (at 45-54) correctly described why a preliminary 
injunction is unwarranted in light of the harm it would thrust on the government and 
the public at large. Texas adds the following, however, to explain why the Plaintiffs 
have not made an adequate showing of irreparable harm, and to show how the 
balance of equities demonstrably disfavors a preliminary injunction here where 
Texans would suffer substantially more concrete harm from an injunction than 
Plaintiffs might in its absence. 
A. Plaintiffs Have Failed to Show Irreparable Harm. 
Plaintiffs’ theory of irreparable harm has fatal legal and factual flaws. 
Legally, it is well established that a party does not suffer irreparable harm if it 
takes a gamble that does not pan out; in equity, litigants cannot put their money on 
red and then claim irreparable harm from being forced to pay up when the wheel hits 
black. See Cuomo v. NRC, 772 F.2d 972, 977 (D.C. Cir. 1985) (per curiam) (company 
made expenditures “in the anticipation that a [certain] license would eventually be 
granted. In making these [expenditures], [the company] took a risk that [the] license 
might not be granted or might be delayed. Such self-imposed costs are not” 
irreparable harm); Drakes Bay Oyster Co. v. Jewell, 747 F.3d 1073,  1092 (9th Cir. 
2014) (no irreparable harm to oyster farm company who was not granted renewal 
permit for its operations because company “purchased the oyster farm with full 
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21 
disclosure, knowing that the [permit] was set to expire in 2012” and was “repeatedly 
warned” that a new permit may not issue). But that is exactly what Plaintiffs are 
doing—they entered the country unlawfully, gambling that they might succeed in a 
later immigration proceeding and be permitted to stay. See JA45 ¶ 4 (Plaintiffs 
conceding that they were planning to resist removal on the basis of statutory 
privileges that are dispensed at immigration officials’ discretion). But it is well 
known that aliens frequently fail to achieve that result. See, e.g., Thuraissigiam, 140 
S. Ct. at 1963 (“Most asylum claims . . . ultimately fail, and some are fraudulent.”). 
It is not “irreparable harm” for Plaintiffs to incur the consequences of their failed 
gamble. 
Factually, even if Plaintiffs’ theories of harm from removal were cognizable, 
they are nevertheless insufficient because they are speculative. See Wis. Gas Co. v. 
FERC, 758 F.2d 669, 674 (D.C. Cir. 1985) (per curiam) (to warrant preliminary 
injunction irreparable harm “must be both certain and great; it must be actual and 
not theoretical”). Plaintiffs claimed below that they may encounter violence if 
removed because their home countries “are among the most dangerous in the world 
due to gang, gender, family membership, and other identity-based violence.” JA113. 
Plaintiffs submitted evidence showing they have a “fear” of violence in their home 
countries. JA113-14 (emphasis added). But “[a] finding of irreparable harm must be 
grounded on something more than conjecture, surmise, or a party’s unsubstantiated 
fears of what the future may have in store.” Charlesbank Equity Fund II v. Blinds To 
Go, Inc., 370 F.3d 151, 162 (1st Cir. 2004). If that were not true, then it might literally 
be the case that almost every alien resisting removal satisfies the “irreparable harm” 
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22 
inquiry. That cannot be right, and Plaintiffs cannot rely on the bare assertion that 
their home countries are more dangerous than the United States to satisfy their 
burden. 
B. The Balance of Equities Disfavors Plaintiffs. 
The balance of equities also does not favor Plaintiffs. Even assuming that 
Plaintiffs have adequately demonstrated irreparable harm, the substantial harms that 
Texas will suffer under an injunction more than offsets the harms that Plaintiffs fear. 
“Relief saving one claimant from irreparable injury, at the expense of similar 
harm caused another, might not qualify as [an] equitable judgment.” See Va. 
Petroleum Jobbers Ass’n v. Fed. Power Comm’n, 259 F.2d 921, 925 (D.C. Cir. 1958); 
see also Serono Labs., Inc. v. Shalala, 158 F.3d 1313, 1326 (D.C. Cir. 1998) (“ignoring 
injury” to two parties when “balancing the harms” and viewing them as 
“offsetting”). Here an injunction will subject Texas to substantial harm. As 
Defendants have recognized, “[t]he public health risks of inaction include 
transmission and spread of COVID-19” along the border, and “further transmission 
and spread of COVID-19 in the interior.” 85 Fed. Reg. at 65,807. And COVID-19 
outbreaks in immigration facilities “would lead to transfers of such persons to local 
or regional health care providers, which would exhaust the local or regional 
healthcare resources, or at least reduce the availability of such resources to the 
domestic population, and further expose local or regional healthcare workers to 
COVID-19.” Id. at 65,809. There is no legitimate dispute that this is happening in 
Texas and inflicting substantial harm on local Texas communities. See Hidalgo 
County Judge Richard F. Cortez, Declaring a Local State of Disaster at 1 (Aug. 2, 
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23 
2021) (declaring disaster because “local Non-Governmental Organizations, and the 
City of McAllen are overwhelmed with the unanticipated influx of individuals and 
can no longer adequately feed, house, provide medical attention or otherwise 
accommodate the individuals being released into the County”);6 Webb County 
Judge Tano E. Tijerina, Corrected Declaration of Local State of Disaster and Order at 1 
(July 21, 2021) (declaring disaster because “the unanticipated influx of [aliens with 
high COVID-19 positivity rates] 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”);7 Mayor Bruno J. Lozano, City of Del 
Rio Emergency Local Disaster Declaration at 1 (Sept. 17, 2021) (declaring state of 
disaster where “limited resources of the City cannot adequately furnish the 
necessary procedures and facilities set forth by the [CDC] for the testing and 
quarantining of thousands of immigrants who may be infected with unknown 
variants of COVID-19”).8 
Finally, to the extent the equities are even close, Congress broke any tie by 
expressly instructing that the public interest favors Texas, not illegal entrants. 
Defendants have a statutory obligation to “assist States and their political 
subdivisions in the prevention and suppression of communicable diseases.” 42 
U.S.C. § 243(a). An injunction barring immediate expulsion of aliens who violate the 
 
6 See https://www.hidalgocounty.us/DocumentCenter/View/47015/08022021-
Declaring-A-Local-State-of-Disaster. 
7 https://www.webbcountytx.gov/DisasterDeclarationRIMSJuly202021.pdf. 
8 https://www.cityofdelrio.com/home/showpublisheddocument/6590/
637674846959119902. 
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24 
Section 265 Orders would undermine that instruction and would harm the public 
interest. See Serono Labs, 158 F.3d at 1326 (equating Congress’s purpose in passing 
amendments to statute with the public interest). 
CONCLUSION 
For the foregoing reasons, the district court’s judgment should be reversed and 
its preliminary injunction vacated. 
 
Respectfully submitted. 
KEN PAXTON 
Attorney General of Texas 
 
BRENT WEBSTER 
First Assistant Attorney General 
 
Office of the Attorney General 
P.O. Box 12548 (MC 059) 
Austin, Texas 78711-2548 
Tel.: (512) 936-1896 
Fax: (512) 370-9191 
JUDD E. STONE II 
Solicitor General 
 
/s/ Ryan S. Baasch 
RYAN S. BAASCH 
Assistant Solicitor General 
Ryan.baasch@oag.texas.gov 
 
LEIF A. OLSON 
Special Counsel 
 
Counsel for Amicus Curiae the State 
of Texas 
 
 
 
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Certificate of Compliance 
The foregoing brief complies with Federal Rules of Appellate Procedure 
32(a)(5) and (6) because it is written in 14-point Equity typeface. It complies with 
Federal Rules of Appellate Procedure 29(a)(5) because it contains 6,447 words, 
excluding exempted portions, according to Microsoft Word. 
 
 
 
 
 
 
 
/s/ Ryan S. Baasch                     
 
 
 
 
 
 
 
RYAN S. BAASCH 
 
Certificate of Service 
 
On October 28, 2021, the foregoing brief and certificate as to parties and amici 
were served via CM/ECF on all registered counsel. 
 
 
 
 
 
 
 
/s/ Ryan S. Baasch                     
 
 
 
 
 
 
 
RYAN S. BAASCH 
USCA Case #21-5200      Document #1920275            Filed: 10/29/2021      Page 32 of 32

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