Defendants-Appellants' Motion to Hold Case in Abeyance — Huisha-Huisha v. Mayorkas

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[ORAL ARGUMENT NOT YET SCHEDULED] 
 
IN THE UNITED STATES COURT OF APPEALS 
FOR THE DISTRICT OF COLUMBIA CIRCUIT 
 
 
NANCY GIMENA HUISHA-HUISHA, on behalf of 
herself and others similarly situated,  
 
Plaintiffs-Appellees,  
 
v.  
 
ALEJANDRO MAYORKAS, Secretary of Homeland 
Security, et al.,  
 
Defendants-Appellants. 
 
No. 22-5325 
 
MOTION TO HOLD CASE IN ABEYANCE  
BRIAN M. BOYNTON 
Principal Deputy Assistant 
Attorney General 
 
MATTHEW M. GRAVES 
United States Attorney 
 
SHARON SWINGLE 
JOSHUA WALDMAN 
Attorneys, Appellate Staff 
Civil Division 
U.S. Department of Justice 
950 Pennsylvania Avenue NW 
Washington, DC 20530 
(202) 514-0236 
joshua.waldman@usdoj.gov
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Pursuant to Federal Rule of Appellate Procedure 27, Defendants respectfully 
move to hold this case in abeyance.  This appeal seeks review of the district court’s 
order vacating and setting aside a regulation issued by the Centers for Disease 
Control and Prevention (CDC), 42 C.F.R. § 71.40, as well as certain orders issued 
by CDC pursuant to that authority.  The Department of Health and Human 
Services (HHS) and CDC, however, have decided to undertake notice-and-
comment rulemaking to replace the regulation vacated by the district court.  In 
addition, CDC has previously announced the termination of the same orders 
vacated by the district court.  While a Louisiana district court preliminarily 
enjoined CDC’s termination of those orders, the government’s appeal of that 
injunction is currently pending before the United States Court of Appeals for the 
Fifth Circuit.  This Court should hold the present case in abeyance pending the 
outcome of those administrative and judicial proceedings, which may obviate the 
need for this Court’s review.   
In addition, on December 27, 2022, the Supreme Court granted a petition for 
a writ of certiorari to review this Court’s order denying a motion, brought by 19 
States, to intervene in this appeal.  That pending action provides an additional 
reason to hold the present appeal in abeyance. 
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For these reasons, the Court should hold this appeal in abeyance indefinitely 
but allow any party to move to lift the abeyance if future litigation, regulatory 
developments, or other circumstances warrant lifting the abeyance. 
Plaintiffs’ counsel has informed the government that “Plaintiffs oppose 
Defendants’ request to hold the appeal in abeyance pending the outcome of the 
Louisiana case or rule making.  However, Plaintiffs do not oppose holding this 
appeal in abeyance pending the outcome of the Supreme Court’s intervention 
ruling, at which time there will be greater certainty about the most efficient and fair 
way to proceed.” 
BACKGROUND 
1. 
Under 42 U.S.C. § 265, whenever the Secretary of Health and Human 
Services “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 
Secretary may “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.” 
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In March 2020, in light of the COVID-19 global pandemic, HHS and CDC 
issued an interim final rule under Section 265 authorizing the CDC Director to 
temporarily suspend the introduction of certain persons into the United States.  85 
Fed. Reg. 16,559 (Mar. 24, 2020).  HHS and CDC also issued an order 
implementing that authority by temporarily suspending the introduction of certain 
noncitizens (referred to as “covered aliens”) traveling from Canada and Mexico 
into the United States.  85 Fed. Reg. 17,060 (Mar. 26, 2020).  CDC extended the 
order in April 2020 and again in May 2020, and then published a final rule in 
September 2020 permitting the CDC Director to “prohibit, in whole or in part, the 
introduction into the United States of persons from designated foreign countries” 
“for such period of time that the Director deems necessary to avert the danger of 
the introduction of a quarantinable communicable disease.”  85 Fed. Reg. 56424, 
56,425 (2020) (codified at 42 C.F.R. § 71.40).  The CDC Director then issued a 
new order that suspended the introduction of all covered aliens into the United 
States, subject to certain exceptions, until he 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,” based on recurring 30-day reviews by CDC.  85 Fed. Reg. 
65,806, 65,807-08 (Oct. 16, 2020).  CDC’s regulation and implementing orders are 
collectively referred to as its “Title 42” process or policy. 
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In February 2021, the President issued an Executive Order directing HHS 
and CDC, in consultation with the Department of Homeland Security (DHS), to 
“promptly review and determine whether termination, rescission, or modification 
of the [the CDC order and final rule] is necessary and appropriate.”  Executive 
Order No. 14,010, 86 Fed Reg. 8267 (Feb. 2, 2021).  CDC issued a series of 
notices and orders excepting unaccompanied noncitizen children from its orders, 
see 86 Fed. Reg. 9942 (Feb. 17, 2021); 86 Fed. Reg. 38,717 (July 22, 2021); 86 
Fed. Reg. 42,828 (Aug. 2, 2021); 87 Fed. Reg. 15,243, 15,248 (Mar. 17, 2022), but 
concluded in August 2021 based on its then-current public-health assessment that 
the Title 42 policy “remain[ed] necessary” for single adults and family units.  86 
Fed. Reg. 42, 828, 42,829 (Aug. 5. 2021). 
2. 
Plaintiffs are six families that unlawfully crossed the U.S.-Mexico 
border into the United States, and whom DHS determined to be subject to the Title 
42 process.  Plaintiffs brought suit in January 2021 on behalf of a putative class of 
noncitizen family units who are or will be subjected to the Title 42 process.  The 
district court granted class certification and issued a classwide preliminary 
injunction.  The district court held that plaintiffs were likely to succeed on the 
merits of their statutory challenge because, in the court’s view, Section 265 likely 
did not authorize the government to expel noncitizens once they have crossed the 
border into the United States.  The district court also found that the remaining 
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preliminary injunction factors weighed in plaintiffs’ favor.  The district court 
enjoined the government from expelling class members from the United States 
under the CDC rule and orders.  Huisha-Huisha v. Mayorkas, 560 F. Supp. 3d 146 
(D.D.C. 2021).   
This Court stayed the preliminary injunction pending appeal, and 
subsequently affirmed the preliminary injunction in part and vacated in part.  This 
Court held that Section 265 likely authorized “the Executive [to] expel the 
Plaintiffs from the country,” but likely did not authorize the government to “expel 
them to places where they will be persecuted or tortured.”  Huisha-Huisha v. 
Mayorkas, 27 F.4th 718, 772 (D.C. Cir. 2022).  This Court remanded for further 
proceedings. 
3. 
On April 1, 2022, following this Court’s decision, the CDC issued an 
order terminating all its prior Title 42 orders prohibiting the introduction of certain 
other noncitizens (i.e., family units and single adults) into the United States.  See 
87 Fed. Reg. 19,941 (Apr. 6, 2022).  The CDC concluded that its prior Title 42 
orders were “no longer required in the interest of public health.”  Id. at 19,942.  
The termination, by its terms, was to take effect on May 23, 2022.  See id. at 
19,941.  In light of the CDC’s termination of its prior Title 42 orders, on April 22, 
2022, this Court granted the government’s motion for a four-week extension of 
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time, until the termination order’s effective date, for issuance of the mandate in 
Huisha-Huisha. 
A group of States then brought suit to challenge the termination order, and 
on May 20, 2022, a Louisiana district court preliminarily enjoined the order on the 
grounds that it failed to comply with notice-and-comment requirements.  See 
Louisiana v. CDC, No. 6:22-cv-00885 (W.D. La.), Preliminary Injunction Order, 
ECF No. 91 (May 20, 2022).  The government has appealed that ruling.  See 
Louisiana v. CDC, No. 22-30303 (5th Cir.).  The appeal is fully briefed, and oral 
argument is tentatively scheduled for the week of March 6, 2023. 
4. 
On remand in the present case, plaintiffs moved for partial summary 
judgment on their claims that the Title 42 policy – including CDC’s regulation at 
42 C.F.R. § 71.40, and its various orders implementing that regulation – were 
arbitrary and capricious under the Administrative Procedure Act.  The government 
opposed plaintiffs’ claims, noting that, although CDC had sought to terminate the 
orders in April 2022, CDC had reasonably explained the public health need for the 
orders at the time it had issued them.  The district court granted partial summary 
judgment in plaintiffs’ favor.  The district court vacated the CDC’s rule and orders, 
and permanently enjoined the government from applying the rule and orders to the 
plaintiff class members.  Huisha-Huisha v. Mayorkas, --- F. Supp. 3d ---- 2022 WL 
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16948610 (D.D.C. 2022).  The government filed a notice of appeal on December 7, 
2022.  
5. 
On December 9, 2022, a group of 19 States moved to intervene in this 
appeal, and on December 12, 2022, those States moved for a stay pending appeal.  
This Court denied both motions on December 16, 2022.  On December 27, 2022, 
the Supreme Court granted the States’ petition for a writ of certiorari to review this 
Court’s order denying intervention, scheduled argument for the February 2023 
argument session, and stayed the district court’s order in this case pending the 
Supreme Court’s judgment.  Arizona v. Mayorkas, S. Ct. No. 22-A-544, 2022 WL 
17957850 (2022). 
ARGUMENT 
This Court should hold this case in abeyance pending further administrative 
and judicial proceedings that may obviate the need for this Court’s review.  The 
district court held that CDC’s Title 42 regulation, 42 C.F.R. § 71.40, is arbitrary 
and capricious and vacated that regulation on those grounds.  However, HHS and 
CDC have decided to undertake notice-and-comment rulemaking to replace the 
very regulation vacated by the district court.  The culmination of those forthcoming 
administrative proceedings may therefore moot the government’s appeal of the 
district court’s judgment vacating and setting aside that regulation.  This Court has 
held litigation in abeyance in similar circumstances, where the government appeals 
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a district court’s order vacating its regulations or orders but also engages 
administrative proceedings that would or might replace the very agency action that 
would otherwise be the subject of this Court’s review.  See, e.g., GPA Midstream 
v. PHMSA, D.C. Cir. No. 22-1037 (abeyance granted April 20, 2022); Samma v. 
Dep’t of Def., D.C. Cir. No. 20-5320 (abeyance granted June 30, 2021); 
Competitive Enterprise Inst. v. NHTSA, D.C. Cir. No. 20-1145 (abeyance granted 
April 2, 2021); Whitman Walker Clinic v. HHS, D.C. Cir. No. 20-5331 (abeyance 
granted Feb. 18, 2021); National Waste & Recycling Assoc. v. EPA, D.C. Cir. No. 
16-1372 (abeyance granted June 14, 2017); American Petroleum Inst. v. EPA, D.C. 
Cir. No. 13-1108 (abeyance granted May 18, 2017).  See also Biden v. Sierra Club, 
142 S. Ct. 46 (2021) (No. 20-138) (placing case in abeyance pending regulatory 
developments and subsequently vacating lower court decisions following change in 
policy); Mayorkas v. Innovation Law Lab, 141 S. Ct. 2842 (2021) (No. 19-1212) 
(placing case in abeyance pending further agency action and subsequently vacating 
lower court decisions following change in policy). 
The district court also held that CDC’s orders implementing its regulatory 
authority are arbitrary and capricious and vacated those orders as well.  As noted 
above, however, CDC has previously issued an order terminating all its prior Title 
42 orders including those vacated by the district court, because it determined those 
orders were no longer required in the interest of public health.  See 87 Fed. Reg. 
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19,941 (Apr. 6, 2022).  While that termination was enjoined by a different district 
court on the grounds that it failed to comply with notice-and-comment 
requirements, the government has appealed that injunction to the United States 
Court of Appeals for the Fifth Circuit.  That appeal is fully briefed and oral 
argument is tentatively scheduled for the week of March 6, 2023.  See Louisiana v. 
CDC, No. 22-30303 (5th Cir.).  If the government is successful in its appeal, the 
court of appeals could vacate the district court injunction prohibiting the CDC’s 
termination of its prior Title 42 orders from taking effect.  The result of a 
successful appeal could therefore result in the termination of the same CDC orders 
vacated by the district court in this case. 
Accordingly, the outcome of the appeal may also obviate the need for this 
Court to review whether the district court correctly held that those prior orders 
were arbitrary and capricious, because those orders would be terminated by the 
CDC on the ground that they were no longer required in the interest of public 
health. 
Furthermore, the Supreme Court has granted certiorari to review this Court’s 
order denying the States’ motion to intervene.  As a result, proceeding with the 
appeal in this Court without the States’ participation as intervenors could 
potentially either be inefficient (if the Supreme Court were to hold that the States 
are entitled to intervene after briefing in this Court was complete) or interfere with 
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the Supreme Court’s jurisdiction (if this Court were to resolve the merits of the 
appeal before the Supreme Court rules on the intervention question).  The Supreme 
Court’s pending review of the intervention question thus provides an additional 
reason for holding this appeal in abeyance.  
 
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CONCLUSION 
 
For the foregoing reasons, this Court should hold this case in abeyance. 
  Respectfully submitted, 
 
BRIAN M. BOYNTON 
Principal Deputy Assistant 
Attorney General 
 
MATTHEW M. GRAVES 
United States Attorney 
 
SHARON SWINGLE 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
Attorneys, Appellate Staff 
Civil Division 
U.S. Department of Justice 
950 Pennsylvania Ave. NW 
Washington, DC 20530 
(202) 514-0236 
joshua.waldman@usdoj.gov 
 
 
 
January 2023 
 
 
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CERTIFICATE OF COMPLIANCE 
I hereby certify that this motion satisfies the type-volume limitation in Rule 
27(d)(2)(A) because it contains 2128 words. This motion also complies with the 
typeface and type-style requirements of Rule 32(a)(5) and Rule 32(a)(6) because it 
was prepared using Microsoft Word 2016 in Times New Roman 14-point font, a 
proportionally spaced typeface. 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
 
 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on January 9, 2023, I electronically filed the foregoing 
with the Clerk of the Court for the United States Court of Appeals for the District 
of Columbia Circuit by using the appellate CM/ECF system. Participants in the 
case are registered CM/ECF users, and service will be accomplished by the 
appellate CM/ECF system.   
 
 
/s/ Joshua Waldman 
JOSHUA WALDMAN 
USCA Case #22-5325      Document #1980682            Filed: 01/09/2023      Page 14 of 14

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