Reply in Support of Motion to Vacate the District Court’s Judgment — 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 
 
REPLY IN SUPPORT OF MOTION TO VACATE  
THE DISTRICT COURT’S JUDGMENT 
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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Plaintiffs agree that this case became moot upon the expiration of the 
Secretary of Health and Human Services’ declaration of COVID-19 as a public 
health emergency, which in turn resulted in the expiration of the orders issued by 
the Centers for Disease Control and Prevention (CDC) that Plaintiffs challenge in 
this litigation.  Plaintiffs do not dispute that the “commonly utilized,” United States 
v. Munsingwear, Inc., 340 U.S. 36, 39 (1950), and “ordinary practice” is to “vacate 
a lower court judgment when a case becomes moot” on appeal, Alvarez v. Smith, 
558 U.S. 87, 97 (2009).  Plaintiffs nonetheless contend that vacatur is unwarranted 
because, they assert, the government caused mootness or other equitable 
considerations weigh against vacatur.  For the reasons explained below, neither 
contention is well-founded.1  
ARGUMENT 
1. 
Plaintiffs argue (Opp. 1) that vacatur is inappropriate where “the party 
seeking relief from the judgment below caused the mootness by voluntary action.”  
U.S. Bancorp Mortg. Co. v. Bonner Mall P’ship, 513 U.S. 18, 24 (1994).  But 
Bancorp addressed only “mootness by reason of settlement,” id. at 29, and this 
Court “interpret[s] Bancorp narrowly,” suggesting that “the Bancorp exception 
 
1 Plaintiffs agree that “the case” is moot but argue this Court should remand 
with instructions to dismiss “the remaining, undecided claims * * * as moot.”  
Opp. 1.  But the expiration of the Secretary’s public health emergency moots 
plaintiffs’ entire case, not just the claims left undecided by the district court. 
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may be limited to appeals mooted by settlement,” Humane Society v. Kempthorne, 
527 F.3d 181, 185, 187 (D.C. Cir. 2008), and questioning whether “the voluntary 
action exception applies to governmental action in the first place,” id. at 187. 
More importantly, this case became moot because the challenged order — 
which from its inception was intended to operate as a “temporary” suspension — 
by its terms “remain[ed] effective” only until “the expiration of the Secretary of 
[Health and Human Services’] declaration that COVID-19 constitutes a public 
health emergency,” 86 Fed. Reg. 42,828, 42,830, 42,838 (Aug. 5, 2021), and that 
declaration has expired.  Where challenged government action expires by its own 
terms, thus mooting a case on appeal, courts continue to apply the ordinary rule of 
vacating the judgment below.  See, e.g., Trump v. Hawaii, 138 S. Ct. 377 (2017) 
(holding case moot when the policy “expired” by its “own terms,” the appeal “no 
longer presents a live case or controversy,” and “[f]ollowing our established 
practice in such cases, the judgment [below] is therefore vacated”).  And numerous 
courts have reached that result where the expiration of the government’s action 
was, as here, caused by changed public health circumstances. See, e.g., Brach v. 
Newsome, 38 F.4th 6, 15 (9th Cir. 2022) (en banc) (holding that challenges to 
emergency COVID-19 orders that “were temporary measures designed to expire 
by their own terms” were moot and “dismiss[ing] the appeal and remand[ing] with 
instructions for the district court to vacate its judgment”); Spell v. Edwards, 962 
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F.3d 175, 179-80 (5th Cir. 2020) (holding that a policy “that expires by its own 
terms” mooted the litigation “[a]nd because the appeal became moot before 
appellate review” the district court’s order “is VACATED”); County of Butler v. 
Governor of Pennsylvania, 8 F.4th 226, 231-32 (3rd Cir. 2021) (where “challenged 
[COVID-19] orders have expired by their own terms,” the appeal is moot and the 
court “follows the established practice” in “vacat[ing] the judgment below”); Eden, 
LLC v. Justice, 36 F.4th 166, 172 (4th Cir. 2022) (holding that Governor’s 
termination of challenged COVID-19 restrictions mooted the case and following 
the “customary practice” the court “vacate[d] the district court’s judgment”).  Cf. 
Clarke v. United States, 915 F.2d 699, 705, 708 (D.C. Cir. 1990) (en banc) (finding 
mootness in challenge to “non-reenactment of a one-time condition that expired of 
its own terms” and vacating decision of appellate panel and district court 
judgment).  See Motion 14 (discussing these cases).  Plaintiffs contend that these 
cases are “unavailing,” Opp. 7, but they do not discuss why or engage in any 
analysis of why the present case differs in a meaningful way.     
Plaintiffs nevertheless contend that vacatur is unavailable because the 
government lost below, and, in their view, “[t]hat makes all the difference.”  Opp. 
7.  That is incorrect, and cannot be reconciled with Trump v. Hawaii, Brach, 
County of Butler, or Clarke (cited above), all of which vacated lower court 
judgments in which a government entity lost in the district court and its appeal was 
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mooted because the challenged government action expired by its own terms.  
Indeed, the Supreme Court has made clear that vacatur is appropriate when the 
government has lost in the lower court even when the challenged action does not 
merely self-expire, but is affirmatively terminated for policy reasons.  See, e.g., 
Yellen v. United States House of Representatives, 142 S. Ct. 332 (2021); Mayorkas 
v. Innovation Law Lab, 141 S. Ct. 2842 (2021); see also, e.g., Biden v. Sierra Club, 
142 S. Ct. 56 (2021); Biden v. Sierra Club, 142 S. Ct. 46 (2021).  A fortiori, 
vacatur is appropriate here.   
  Nor can Plaintiffs’ view be reconciled with the Fifth Circuit’s recent 
decision in Louisiana v. CDC, No. 22-30303.  There, the government also lost 
below — a Louisiana district court entered a preliminary injunction barring 
enforcement of the CDC’s order terminating all of the agency’s prior Title 42 
orders.  The government appealed, but the case became moot for the same reason 
this case is moot (expiration of the Secretary’s public health emergency 
declaration).  The Fifth Circuit accordingly vacated the district court’s preliminary 
injunction before remanding with instructions to dismiss.  See id. (unpublished 
order June 13, 2023).  Plaintiffs contend that “the government has not identified 
any case in which vacatur was granted under the unusual circumstances of this 
case,” Opp. 8, but Louisiana (as well as the other cases noted above) did so in 
almost exactly parallel circumstances. 
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2. 
Plaintiffs suggest that equitable considerations weigh against vacatur 
because, in their view, the government engaged in a “tactical choice” to cause 
mootness in order to avoid an appeal on the merits in this litigation.  But as this 
Court has recognized, “[a]t least in the absence of overwhelming evidence (and 
perhaps not then), it would seem inappropriate for the courts either to impute such 
manipulative conduct to a coordinate branch of government, or to apply against 
that branch a doctrine that appears to rest on the likelihood of a manipulative 
purpose.”  Clarke, 915 F.2d at 705.  
Plaintiffs suggest that a manipulative purpose is evident from the 
government’s motion to hold this appeal in abeyance.  Opp. 5.  But the 
government’s request to hold an appeal in abeyance does not preclude vacatur of a 
lower court’s judgment when the appeal becomes moot because of a change in 
government policy or a change in the law that occurred during the abeyance.  See 
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). 
Plaintiffs nonetheless contend that vacatur is inappropriate because the 
government sought to hold this appeal in abeyance pending anticipated rulemaking 
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that would replace the regulation vacated by the district court.  Opp. 5.  In 
plaintiffs’ view, the government’s abeyance motion demonstrates that it was 
prepared to leave in place the district court’s judgment vacating the CDC’s 
regulation until such time as the agency issued new rulemaking, Opp. 3, and thus, 
in their view, the government is “in no way harmed,” Opp. 2, if this Court leaves 
the district court’s judgment in place now.  But plaintiffs’ argument overlooks a 
key difference between abeyance and mootness.   
Had the government’s appeal been held in abeyance pending new 
rulemaking, the government would still have preserved the opportunity, if 
circumstances required, to ask the Court to lift the abeyance, proceed with the 
appeal, and reverse the judgment below.  See Defs.’ Mtn. to Hold Case in 
Abeyance at 2 (“[T]he 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.”).  When this 
appeal became moot, however, the government lost any opportunity to appeal and 
seek reversal of the district court’s judgment vacating the CDC’s regulation.  That 
is precisely the circumstance in which Munsingwear vacatur is warranted.  See 
Munsingwear, 340 U.S. at 39 (“[T]hose who have been prevented from obtaining 
the review to which they are entitled should not be treated as if there had been a 
review.”).  In the absence of vacatur, the government is harmed by depriving the 
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CDC of its important regulatory authority concerning public health because of a 
district court judgment the government can no longer appeal.  Plaintiffs, by 
contrast, have identified no cognizable harm that they would suffer if this Court 
grants vacatur and the CDC’s regulation remained valid pending the CDC’s 
rulemaking, given that no operative Title 42 orders remain in effect and there is no 
reasonable likelihood that Plaintiffs will be subject to a new Title 42 order 
addressing COVID-19 in the foreseeable future.2 
Plaintiffs also suggest (Opp.7-8) that the automatic expiration of the 
Secretary’s public health declaration was a manipulative tactic supposedly driven 
by the government’s interest in obtaining vacatur in this litigation.  That suggestion 
is without merit.  The Secretary’s allowing the declaration to expire of its own 
force was not rooted in litigation tactics, but in his assessment of the fundamental 
change in public health conditions.  That broader assessment was consistent with 
the CDC’s own specific determination — made months prior to the district court 
 
2 The government’s harm is all the greater because the district court 
purported to vacate the CDC’s regulation entirely, rather than just enjoining or 
vacating it with respect to the Plaintiff class members.  (The district court’s 
permanent injunction was limited to prohibiting enforcement against class 
members, but its order purporting to vacate the regulation was not similarly 
limited.)  Whether the district court was authorized to do so, and whether equitable 
considerations in any event would allow such relief in this case, are questions of 
considerable importance that the government was unable to contest on appeal.  See 
United States v. Texas, 2023 WL 4139000 at *13-*17 (2023) (Gorsuch, J., 
concurring in the judgment). 
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judgment below — that all its prior Title 42 orders should be terminated in light of 
changed public health conditions.  That determination was prevented from 
becoming effective — which would have mooted this case before any judgment 
was entered — only because of the preliminary injunction entered in the Louisiana 
case, which has now been vacated on mootness grounds that apply here as well. 
Moreover, as noted in the government’s motion (at 4 n.1), the expiration of 
the Secretary’s declaration had numerous legal consequences unrelated to Title 42, 
all of which were contingent on the continuation of the declaration — including for 
the authorization to expend funds under various programs and to waive or modify 
certain requirements under the Medicare, Medicaid, and Children’s Health 
Insurance Programs to ensure access to care, or to issue various other emergency 
public-health orders.  Plaintiffs’ speculation that the government terminated all of 
these other programs and policies just to seek vacatur in this case is far-fetched, to 
say the least.  Cf. Citizens to Preserve Overton Park, Inc. v. Volpe, 401 U.S. 402, 
415 (1971) (noting “presumption of regularity” that applies to government action).  
Indeed, the fact that the government has also taken steps to terminate other 
COVID-19 measures in light of changed public health conditions that were not 
contingent on the Secretary’s declaration, see Motion 9 n.2, only reinforces that the 
government’s actions are rooted in an assessment of public health conditions rather 
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than litigation tactics.  Plaintiffs have no basis, or evidence, for suggesting 
otherwise.   
In the end, Plaintiffs agree that there is no categorical rule that would bar 
vacatur here, which they say instead “turns on the particular circumstances of a 
case.”  Opp. 7.  As the government previously explained (Motion 17-18), if vacatur 
were unavailable under these circumstances — where the challenged government 
action self-terminated because of changed public health conditions unrelated to the 
merits of the litigation — then the Executive Branch would be forced to choose 
between continuing a policy that it has concluded is no longer required in the 
interests of public health, on the one hand, and acquiescing to an erroneous district 
court judgment, on the other.  Neither “the ends of justice” nor “the public interest” 
would be served by that outcome.  Bancorp, 513 U.S. at 24, 26.   
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CONCLUSION 
 
For the foregoing reasons and those stated in the government’s Motion, this 
Court should vacate the district court’s grant of partial summary judgment and the 
permanent injunction it entered and remand with instructions to dismiss the case as 
moot. 
  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 
 
 
 
July 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 2131 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 July 3, 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 #2006119            Filed: 07/03/2023      Page 13 of 13

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