Appellees' Rule 28(j) Supplemental Citation Letter — Huisha-Huisha v. Mayorkas

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National Office 
125 Broad Street, 18th  floor 
New York NY 10014 
p. (212) 549-2660 
f. (212) 549-2654 
lgelernt@aclu.org 
 
LEE GELERNT 
DEPUTY DIRECTOR 
IMMIGRANTS’ RIGHTS PROJECT 
By ECF 
 
January 18, 2022 
 
The Honorable Mark Langer  
Clerk, U.S. Court of Appeals  
for the District of Columbia Circuit 
E. Barrett Prettyman U.S. Courthouse and 
William B. Bryant Annex 
333 Constitution Ave., NW 
Washington, DC 20001 
 
Re: Huisha-Huisha v. Mayorkas, No. 21-5200 
(Oral argument January 19, 2022, before Judges 
Srinivasan, Wilkins, and Walker) 
 
Dear Mr. Langer: 
 
Appellees respectfully submit the Supreme Court’s 
opinions in National Federation of Independent Business v. 
Department of Labor, Occupational Safety & Health 
Administration (OSHA), No. 21A244, 2022 WL 120952 
(U.S. Jan. 13, 2022), and Biden v. Missouri, No. 21A240, 
2022 WL 120950 (U.S. Jan. 13, 2022), as supplemental 
authority. 
 
In the OSHA decision, the Supreme Court stayed the 
agency’s vaccine-or-test requirement for most large 
employers.  Id. at *5.  The Court rejected the government’s 
statutory interpretation, explaining: 
 
It is telling that OSHA, in its half century of 
existence, has never before adopted a broad 
public health regulation of this kind . . . . This 
“lack of historical precedent,” coupled with the 
breadth of authority that the Secretary now 
claims, is a “telling indication” that the mandate 
extends beyond the agency’s legitimate reach.  
 
Id. at *4 (quoting Free Enterprise Fund v. Public Company 
USCA Case #21-5200      Document #1931017            Filed: 01/18/2022      Page 1 of 3

 
 
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National Office 
125 Broad Street, 18th  floor 
New York NY 10014 
p. (212) 549-2660 
f. (212) 549-2654 
lgelernt@aclu.org 
 
LEE GELERNT 
DEPUTY DIRECTOR 
IMMIGRANTS’ RIGHTS PROJECT 
Accounting Oversight Bd., 561 U.S. 477, 505 (2010)).   
 
By contrast,  the Supreme Court allowed another rule 
to go into effect that requires vaccination as a condition of 
participation in Medicare and Medicaid.  Missouri, 2022 WL 
120950.  The Court emphasized that the “longstanding 
practice of Health and Human Services in implementing the 
relevant statutory authorities” provided ample precedent for 
the imposition of similar “health-related participation 
conditions.”  Id. at *3.  The Court thus declined to limit “the 
exercise of authorities the agency has long been recognized 
to have.”  Id. at *5. 
 
The decisions strongly support Appellee’s position that 
42 U.S.C. § 265 does not authorize Defendants’ 
unprecedented claim to summary expulsion authority.  
Appellee Br. 15.  While the Supreme Court acknowledged 
that all Americans continue to face a risk of contracting 
COVID-19, its holding was clear: Where Congress “has not 
given [an] agency the power” it claims, the pandemic cannot 
justify exceeding those limits.  OSHA, 2022 WL 120952,  at 
*5; see also Missouri, 2022 WL 120950 at *5 (“The 
challenges posed by a global pandemic do not allow a federal 
agency to exercise power that Congress has not conferred 
upon it.”).    
 
Respectfully Submitted, 
 
/s/ Lee Gelernt 
Lee Gelernt 
AMERICAN CIVIL LIBERTIES 
UNION FOUNDATION  
IMMIGRANTS’ RIGHTS 
PROJECT 
125 Broad St., 18th Floor 
New York, NY 10004 
T:  (212) 549-2660 
lgelernt@aclu.org 
 
 
USCA Case #21-5200      Document #1931017            Filed: 01/18/2022      Page 2 of 3

 
 
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CERTIFICATE OF COMPLIANCE  
 
I hereby certify that the foregoing letter complies within the type-volume 
limitations of Fed. R. App. P. 28(j) and D.C. Circuit local rules because the body 
contains 332 words.  This letter also complies with the typeface and type style 
requirements of Fed. R. App. P. 32(a)(5)(A) because this letter was prepared in 
a proportionally spaced typeface using Word 14-point Times New Roman. 
 
CERTIFICATE OF SERVICE 
 
I hereby certify that on January 18, 2022, I electronically filed the 
foregoing with the Clerk for the United States Court of Appeals for the D.C. 
Circuit by using the appellate CM/ECF system.  All participants in this case are 
registered CM/ECF users and will be served by the appellate CM/ECF system. 
 
/s/ Lee Gelernt 
Lee Gelernt 
 
USCA Case #21-5200      Document #1931017            Filed: 01/18/2022      Page 3 of 3

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