1/14/2021

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U.S. District Court District of Columbia (Washington, DC) CIVIL DOCKET FOR CASE #: 1:20-cv-01873-DLF

CLOSED,TYPE-D

JOHNS HOPKINS UNIVERSITY v. U.S. DEPARTMENT OF HOMELAND SECURITY et al Assigned to: Judge Dabney L. Friedrich Cause: 05:0706 Judicial Review of Agency Actions

Date Filed: 07/10/2020 Date Terminated: 10/20/2020 Jury Demand: None Nature of Suit: 899 Administrative Procedure Act/Review or Appeal of Agency Decision Jurisdiction: U.S. Government Defendant

Plaintiff JOHNS HOPKINS UNIVERSITY

represented by Derek Lawrence Shaffer QUINN EMANUEL URQUHART & SULLIVAN LLP 1300 I Street, NW Suite 900 Washington, DC 20005 202-538-8000 Email: derekshaffer@quinnemanuel.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

William A. Burck QUINN EMANUEL URQUHART & SULLIVAN, LLP 1300 I Street, NW Suite 900 Washington, DC 20005 (202) 538-8000 Email: williamburck@quinnemanuel.com ATTORNEY TO BE NOTICED

V. Defendant U.S. DEPARTMENT OF HOMELAND SECURITY
https://ecf.dcd.uscourts.gov/cgi-bin/DktRpt.pl?429196451466618-L_1_0-1

represented by Jeremy S. Simon U.S. ATTORNEY'S OFFICE FOR THE DISTRICT OF COLUMBIA 555 Fourth Street, NW Washington, DC 20530 (202) 252-2528 Fax: (202) 252-2599 Email: jeremy.simon@usdoj.gov LEAD ATTORNEY ATTORNEY TO BE NOTICED
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Defendant U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT
Defendant CHAD F. WOLF in his ofﬁcial capacity as Acting Secretary of the U.S. Department of Homeland Security
Defendant MATTHEW T. ALBENCE in his ofﬁcial capacity as Acting Director of the U.S. Immigration and Customs Enforcement
Movant SIXTY INSTITUTIONS OF HIGHER EDUCATION

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represented by Jeremy S. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Jeremy S. Simon (See above for address) LEAD ATTORNEY ATTORNEY TO BE NOTICED
represented by Lindsay C. Harrison JENNER & BLOCK LLP 1099 New York Avenue, NW Suite 900 Washington, DC 20001-4412 (202) 639-6865 Email: LHarrison@jenner.com LEAD ATTORNEY ATTORNEY TO BE NOTICED

Date Filed 07/10/2020
07/10/2020 07/12/2020 07/12/2020
07/12/2020

# Docket Text
1 COMPLAINT against All Defendants ( Filing fee $ 400 receipt number ADCDC7325563) ﬁled by JOHNS HOPKINS UNIVERSITY. (Attachments: # 1 Civil Cover Sheet, # 2 Summons, # 3 Summons, # 4 Summons, # 5 Summons)(Burck, William) (Entered: 07/10/2020)
2 LCvR 26.1 CERTIFICATE OF DISCLOSURE of Corporate Afﬁliations and Financial Interests by JOHNS HOPKINS UNIVERSITY (Burck, William) (Entered: 07/10/2020)
3 NOTICE of Appearance by Derek Lawrence Shaffer on behalf of JOHNS HOPKINS UNIVERSITY (Shaffer, Derek) (Entered: 07/12/2020)
4 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Kathleen M. Sullivan, Firm-Quinn Emanuel Urquhart & Sullivan LLP, Address-865 S. Figueroa St 10th Floor, Los Angeles, CA 90017, Phone No.-213-443-3000 Filing fee $ 100, receipt number ADCDC-7328354. Fee Status: Fee Paid. by JOHNS HOPKINS UNIVERSITY (Attachments: # 1 Declaration of Kathleen M. Sullivan, # 2 Text of Proposed Order) (Shaffer, Derek) (Entered: 07/12/2020)
5 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Crystal Nix-Hines, FirmQuinn Emanuel Urquhart & Sullivan LLP, Address-865 S. Figueroa St 10th Floor, Los Angeles, CA 90017, Phone No.-213-443-3000 Filing fee $ 100, receipt number ADCDC-7328355. Fee Status: Fee Paid. by JOHNS HOPKINS UNIVERSITY

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(Attachments: # 1 Declaration Crystal Nix-Hines, # 2 Text of Proposed Order)(Shaffer, Derek) (Entered: 07/12/2020)

07/12/2020 07/12/2020

6 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Shon Morgan, FirmQuinn Emanuel Urquhart & Sullivan LLP, Address-865 S. Figueroa St 10th Floor, Los Angeles, CA 90017, Phone No.-213-443-3000 Filing fee $ 100, receipt number ADCDC-7328358. Fee Status: Fee Paid. by JOHNS HOPKINS UNIVERSITY (Attachments: # 1 Declaration of Shon Morgan, # 2 Text of Proposed Order)(Shaffer, Derek) (Entered: 07/12/2020)
7 MOTION for Leave to Appear Pro Hac Vice :Attorney Name- Marina Lev, Firm-Quinn Emanuel Urquhart & Sullivan LLP, Address-865 S. Figueroa St 10th Floor, Los Angeles, CA 90017, Phone No.-213-443-3000 Filing fee $ 100, receipt number ADCDC7328362. Fee Status: Fee Paid. by JOHNS HOPKINS UNIVERSITY (Attachments: # 1 Declaration of Marina Lev, # 2 Text of Proposed Order)(Shaffer, Derek) (Entered: 07/12/2020)

07/12/2020

8 NOTICE of Appearance by William A. Burck on behalf of JOHNS HOPKINS UNIVERSITY (Burck, William) (Entered: 07/12/2020)

07/13/2020
07/13/2020 07/13/2020 07/13/2020 07/13/2020

9 MOTION for Temporary Restraining Order , MOTION for Preliminary Injunction by JOHNS HOPKINS UNIVERSITY (Attachments: # 1 Memorandum in Support, # 2 Declaration of Derek L. Shaffer, # 3 Exhibit 1 to Shaffer Declaration, # 4 Exhibit 2 to Shaffer Declaration, # 5 Exhibit 3 to Shaffer Declaration, # 6 Exhibit 4 to Shaffer Declaration, # 7 Text of Proposed Order, # 8 Certiﬁcate of Service)(Burck, William) (Entered: 07/13/2020)
10 AFFIDAVIT re 9 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction of Ellen MacKenzie by JOHNS HOPKINS UNIVERSITY. (Burck, William) (Entered: 07/13/2020)
11 AFFIDAVIT re 9 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction of Sunil Kumar by JOHNS HOPKINS UNIVERSITY. (Burck, William) (Entered: 07/13/2020)
12 AFFIDAVIT re 9 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction of Stephen Gange by JOHNS HOPKINS UNIVERSITY. (Attachments: # 1 Exhibit A, # 2 Exhibit B, # 3 Exhibit C)(Burck, William) (Entered: 07/13/2020)
13 MOTION to Permit Three Declarants to Proceed by Pseudonym by JOHNS HOPKINS UNIVERSITY (Attachments: # 1 Memorandum in Support, # 2 Exhibit A Declaration of Student A, # 3 Exhibit B - Declaration of Student B, # 4 Exhibit C - Declaration of Student C, # 5 Text of Proposed Order, # 6 Certiﬁcate of Service) (Burck, William) (Entered: 07/13/2020)

07/13/2020 07/13/2020 07/13/2020
07/13/2020
07/13/2020

Case Assigned to Judge Dabney L. Friedrich. (zsb) (Entered: 07/13/2020)
14 NOTICE of Appearance by Jeremy S. Simon on behalf of All Defendants (Simon, Jeremy) (Entered: 07/13/2020)
15 REQUEST FOR SUMMONS TO ISSUE Attorney General re 1 Complaint, ﬁled by JOHNS HOPKINS UNIVERSITY. Related document: 1 Complaint, ﬁled by JOHNS HOPKINS UNIVERSITY.(Burck, William) (Entered: 07/13/2020)
16 REQUEST FOR SUMMONS TO ISSUE U.S. Attorney re 1 Complaint, ﬁled by JOHNS HOPKINS UNIVERSITY. Related document: 1 Complaint, ﬁled by JOHNS HOPKINS UNIVERSITY.(Burck, William) (Entered: 07/13/2020)
17 SUMMONS (2) Issued Electronically as to U.S. Attorney and U.S. Attorney General

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(Attachment: # 1 Notice and Consent)(eg) (Entered: 07/13/2020)
MINUTE ORDER. The defendants shall ﬁle any response to the plaintiff's 9 Motion for a Temporary Restraining Order by 4:00 p.m. on July 14, 2020. The Court shall hold a hearing on the motion by videoconference at 11:30 a.m. on July 15, 2020. The Courtroom Deputy will provide counsel with videoconference information separately. So Ordered by Judge Dabney L. Friedrich on July 13, 2020. (lcdlf1) (Entered: 07/13/2020)
18 MOTION for Leave to File Brief as Amici Curiae in Support of Plaintiff by SIXTY INSTITUTIONS OF HIGHER EDUCATION (Attachments: # 1 Exhibit A - Amicus Brief, # 2 Text of Proposed Order)(Harrison, Lindsay) (Entered: 07/13/2020)
Set/Reset Deadlines/Hearings: Responses due by 4:00 PM 7/14/2020 Motion Hearing set for 7/15/2020 at 11:30 AM in Telephonic/VTC before Judge Dabney L. Friedrich. (zjch) (Entered: 07/14/2020)
MINUTE ORDER granting the plaintiff's 4 Motion for Admission Pro Hac Vice of Attorney Kathleen M. Sullivan. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/ﬁles/NextGEN_Tutorial_for_Registering_for_Eﬁling.pdf. So Ordered by Judge Dabney L. Friedrich on July 14, 2020. (lcdlf1) (Entered: 07/14/2020)
MINUTE ORDER granting the plaintiff's 5 Motion for Admission Pro Hac Vice of Attorney Crystal Nix-Hines. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/ﬁles/NextGEN_Tutorial_for_Registering_for_Eﬁling.pdf. So Ordered by Judge Dabney L. Friedrich on July 14, 2020. (lcdlf1) (Entered: 07/14/2020)
MINUTE ORDER granting the plaintiff's 6 Motion for Admission Pro Hac Vice of Attorney Shon Morgan. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/ﬁles/NextGEN_Tutorial_for_Registering_for_Eﬁling.pdf. So Ordered by Judge Dabney L. Friedrich on July 14, 2020. (lcdlf1) (Entered: 07/14/2020)
MINUTE ORDER granting the plaintiff's 7 Motion for Admission Pro Hac Vice of Attorney Marina Lev. Counsel should register for e-ﬁling via PACER and ﬁle a notice of appearance pursuant to LCvR 83.6(a). For instructions visit: https://www.dcd.uscourts.gov/sites/dcd/ﬁles/NextGEN_Tutorial_for_Registering_for_Eﬁling.pdf. So Ordered by Judge Dabney L. Friedrich on July 14, 2020. (lcdlf1) (Entered: 07/14/2020)
19 Memorandum in opposition to re 9 MOTION for Temporary Restraining Order MOTION for Preliminary Injunction ﬁled by MATTHEW T. ALBENCE, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, CHAD WOLF. (Attachments: # 1 Proposed Order, # 2 Exhibit 1 (Jan 2020), # 3 Exhibit 2 (March 9 and March 13, 2020), # 4 Exhibit 3 (March 24, 2020), # 5 Exhibit 4 (April 2020), # 6 Exhibit 5 (July 6 message), # 7 Exhibit 6 (July 7 FAQ))(Simon, Jeremy) (Entered: 07/14/2020)
20 SUMMONS (4) Issued Electronically as to MATTHEW T. ALBENCE, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, CHAD WOLF. (Attachment: # 1 Notice and Consent) (zsb) (Entered: 07/14/2020)

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07/16/2020 09/16/2020 09/16/2020
09/16/2020 10/06/2020
10/20/2020 10/20/2020

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21 NOTICE Joint Notice Regarding July 15, 2020 Hearing by JOHNS HOPKINS UNIVERSITY (Burck, William) (Entered: 07/14/2020)
MINUTE ORDER. Upon consideration of the parties' 21 Joint Notice, the July 15, 2020 hearing on the plaintiff's 9 Motion for a Temporary Restraining Order and Preliminary Injunction is VACATED and the plaintiff's 9 Motion for a Temporary Restraining Order and Preliminary Injunction is DENIED as moot in light of the government's decision to rescind implementation of the July 6, 2020 Policy Directive and the July 7, 2020 FAQ and return to the March 9, 2020 and March 13, 2020 policy. So Ordered by Judge Dabney L. Friedrich on July 14, 2020. (lcdlf1) (Entered: 07/14/2020)
MINUTE ORDER. Upon consideration of the parties' 21 Joint Notice, the 13 Motion to Permit Three Declarants to Proceed by Pseudonym and the 18 Motion for Leave to File Brief as Amici Curiae in Support of Plaintiff are DENIED as moot. So Ordered by Judge Dabney L. Friedrich on July 16, 2020. (lcdlf1) (Entered: 07/16/2020)
22 Consent MOTION for Extension of Time to Answer or Otherwise Respond to Complaint by MATTHEW T. ALBENCE, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, CHAD F. WOLF (Attachments: # 1 Proposed Order)(Simon, Jeremy) (Entered: 09/16/2020)
MINUTE ORDER. Upon consideration of the defendants' 22 Consent Motion for Extension of Time, it is ORDERED that the motion is GRANTED. Accordingly, the defendants shall answer or otherwise respond to the plaintiff's complaint on or before October 6, 2020. So Ordered by Judge Dabney L. Friedrich on September 16, 2020. (lcdlf1) (Entered: 09/16/2020)
Set/Reset Deadlines: Answer due by 10/6/2020, (zjch) (Entered: 09/17/2020)
23 MOTION to Dismiss Complaint as Moot by MATTHEW T. ALBENCE, U.S. DEPARTMENT OF HOMELAND SECURITY, U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT, CHAD F. WOLF (Attachments: # 1 Supporting Memorandum, # 2 Proposed Order, # 3 Exhibit 1 (Broadcast Message July 24, 2020), # 4 Exhibit 2 (FAQ July 24, 2020), # 5 Exhibit 3 (ICE Newsroom Posting), # 6 Z.W. Decision (C.D.Cal) (Oct. 1, 2020))(Simon, Jeremy) (Entered: 10/06/2020)
24 NOTICE of Voluntary Dismissal by JOHNS HOPKINS UNIVERSITY (Shaffer, Derek) (Entered: 10/20/2020)
MINUTE ORDER dismissing this case without prejudice in light of the plaintiff's 24 Notice of Voluntary Dismissal Without Prejudice. See Fed. R. Civ. P. 41(a). The Clerk of Court is directed to close this case. So Ordered by Judge Dabney L. Friedrich on October 20, 2020. (lcdlf1) (Entered: 10/20/2020)

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01/14/2021 10:46:07

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Docket Report

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1:20-cv-01873-DLF

Billable Pages: 5

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0.50

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 Case 1:20-cv-01873 Document 1 Filed 07/10/20 Page 1 of 43

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY 3400 North Charles Street Baltimore, Maryland 21218;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY 245 Murray Lane, SW Washington, DC;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT 500 12th Street, SW Washington, D.C. 20536;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security 245 Murray Lane, SW Washington, DC; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement 500 12th Street, SW Washington, D.C. 20536;
Defendants.

Case No. 20-cv-1873
COMPLAINT FOR DECLARATORY RELIEF AND TEMPORARY AND PERMANENT INJUNCTIVE RELIEF

INTRODUCTION1 1. Long before the highly infectious, sometimes lethal, virus known as COVID-19 became a global pandemic, researchers at Johns Hopkins University (“Johns Hopkins”) began tracking the first illnesses appearing in Wuhan, China in January 2020. Since then, the university’s
1 Consistent with the exigencies it confronts, Johns Hopkins will be filing a corresponding request for a temporary restraining order and preliminary injunction at the first opportunity, expected to be this Monday morning, July 13, 2020. Undersigned counsel is specifically engaging with the

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Coronavirus Resource Center has become perhaps the most comprehensive and up-to-date database in the world, aggregating data from all 3,141 counties in the United States and more than 188 countries worldwide. Attracting more than 700 million views from Seattle to Sydney to Mumbai, Johns Hopkins’ data and public health expertise has been relied upon by numerous entities, including Defendant the Department of Homeland Security, the President’s Coronavirus Task Force, the Centers for Disease Control and Prevention, the United Nations, the domestic and international media, and everyday citizens seeking to keep abreast of the virus’ trendlines.
2. On the eve of university re-openings, however, Defendants have issued a new directive that would send international students back to their countries if they are unable (or unwilling) to have in-person classes during an ongoing pandemic. This action undercuts the country’s longstanding commitment to harnessing the ideas, energies, and contributions of citizens from around the world. Only by virtue of their ability to attract the world’s most talented and ambitious people, including international students who may one day become immigrants to this country, do research universities like Johns Hopkins play their integral role in enhancing the country’s dynamism, competitiveness, and global influence. By visiting arbitrary and capricious consequences on foreign students, the challenged action contravenes our country’s most vaunted values and interests.
3. The statistics on the pandemic Johns Hopkins has published have been sobering: over 12.2 million people infected worldwide and more than half a million deaths attributable to COVID-19. In recent days, according to the Johns Hopkins database, the United States has crossed the grim milestone of 3 million infections and over 133,000 deaths.
4. Amid rising infections and death toll, President Donald J. Trump declared a national emergency on March 13, 2020.2 By that time, Governor Larry Hogan had already announced a state
Department of Justice to ensure that Defendants are duly apprised and equipped to respond. 2 President Donald J. Trump, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020),
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of emergency in Maryland, where Johns Hopkins is based, and Mayor Muriel Bowser followed soon thereafter, declaring a public health emergency for the District of Columbia, which houses the prestigious Paul H. Nitze School of Advanced International Studies and other Johns Hopkins programs.3 Numerous states and municipalities, including Maryland and the District of Columbia, issued stay-at-home restrictions to try to contain the spread of the virus, forcing businesses, restaurants, universities, K-12 schools, religious institutions, and other establishments to temporarily close. The resulting financial toll arising from the shutdowns has been devastating, causing the worst economic crisis since the Great Depression.
5. Like many of its peer institutions, Johns Hopkins acted swiftly to protect its students, faculty and staff from the COVID-19 virus by transitioning on March 10, 2020 to a virtual learning environment in which students could continue their education from the safety of their homes. This transition was, of course, attended by enormous efforts by and significant financial consequences for Johns Hopkins, which went to great lengths to ensure that those students most at risk and hardest hit by the pandemic had access to emergency funds so they could return home, obtain the necessary hardware and access to an online educational platform, or both.
6. The federal government, too, previously took conscientious measures to preserve the safety and continued education of international students studying at American universities who could no longer attend in-person classes and study and live on university campuses. On March 13, 2020, federal acknowledgement of the epidemic manifested itself in an “exemption” issued by United States Immigration and Customs Enforcement (“ICE”), a division of the Department of Homeland Security,
https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak. 3 Office of the Mayor, Mayor Bowser Declares Public Health Emergency (Mar. 11, 2020), https://mayor.dc.gov/release/mayor-bowser-declares-public-health-emergency; The Office of Governor Larry Hogan, Governor Larry Hogan Declares State of Emergency, Expands Statewide Response to Novel Coronavirus (Mar. 5, 2020), https://governor.maryland.gov/2020/03/05/governorlarry-hogan-declares-state-of-emergency-expands-statewide-response-to-novel-coronavirus/.
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to a preexisting rule that students in the country on certain nonimmigrant student visas (“F-1” visas) must attend most classes in person (the “March 13 Guidance”). Recognizing the breadth and depth of the emergency and the needs of students, educational institutions, and the nation, ICE provided that students holding nonimmigrant visas could attend classes remotely while retaining their visa status. The government made clear that this arrangement was “in effect for the duration of the emergency.”4
7. As a result of, and in reliance on, this significant change in policy, hundreds of international students hailing from over 120 countries enrolled in the nine different schools at Johns Hopkins flew home and continued to receive remotely the high-quality education for which Johns Hopkins is renowned. Significantly, all of these students were able to continue to maintain their F-1 visa status while partaking of a completely virtual curriculum. In addition, 147 students who could not return home, including many international students, were approved to remain in the Baltimore or Washington areas. Some of these students were permitted to continue residing on campus even as classes moved to an online format.
8. Since this spring, Johns Hopkins has been relying on real-time data from its Coronavirus Resource Center, the input of its Health Advisory Group comprised of Johns Hopkins faculty, feedback from faculty, staff, and students, and the pedagogical goals of its academic programs to plan for the fall 2020 semester. In the course of time-intensive and detailed planning discussions, the nine undergraduate and graduate schools of Johns Hopkins5 carefully developed re-opening plans that they submitted for approval to the university’s senior leadership. Depending on the pedagogical missions and research needs of the individual schools, and the composition and other needs of its
4 U.S. Immigration and Customs Enforcement, COVID-19: Guidance for SEVP Stakeholders (Mar. 13, 2020), https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20 .pdf. 5 These schools are: the Bloomberg School of Public Health; the School of Advanced International Studies; the Carey Business School; the Krieger School of Arts and Sciences; the School of Education; the Whiting School of Engineering; the School of Medicine; the School of Nursing; and
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student bodies, the re-opening plans ranged from a fully virtual curriculum (as was being considered for the School of Public Health) to a hybrid combination of in-person and remote education (as in the undergraduate programs at the Krieger School of Arts & Sciences, the Whiting School of Engineering, and the Peabody Institute).6 Notably, none of the schools proposed a fully in-person learning environment given what Johns Hopkins educators, researchers, and scientists knew better than almost anyone: data demonstrating a significant uptick in the number of infections nationwide caused by COVID-19 in the wake of relaxation of federal and state stay-at-home mandates.
9. This flexibility and discretion to determine the safest educational environment for its community has been and remains paramount to Johns Hopkins, particularly in light of the prominent role its schools, such as the Bloomberg School of Public Health, have been playing throughout the pandemic. This expertise led Johns Hopkins not only to mitigate the risk of spread inherent in large gatherings by enacting numerous safety protocols, including securement of hotel rooms that disperse student housing, but also to design a school calendar that would end most undergraduate students’ oncampus presence before Thanksgiving. Classes after Thanksgiving would resume online for the duration of the term. This approach would allow students to go home to their families for the Thanksgiving holiday, while eliminating the burden of an additional return flight, as well as the risk that students might come back to campus carrying the virus and become a “super-spreader” in a community that houses vulnerable faculty, staff, and other students. If such plans are now potentially to be changed, Johns Hopkins should be left free of interference and permitted to apply its discretion and expertise in deciding whether and how to change them.
10. Unfortunately, the university’s careful planning has just been completely upended by the actions of Defendants. Immediately after the Independence Day weekend, after President Trump
the Peabody Institute. 6 Coronavirus Information, Information for Undergraduate Students, Johns Hopkins University, https://covidinfo.jhu.edu/information-for-undergraduate-students/ (last visited July 10, 2020).
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declared that the virus would “fade away”7 and “just disappear”8 and tweeted that “SCHOOLS MUST RE-OPEN,”9 the Department of Homeland Security and ICE suddenly and unexpectedly plunged Johns Hopkins—and virtually all of higher education in the United States—into chaos. Specifically, the agency announced on July 6, 2020 (the “July 6 Directive”), without notice or customary (and required) comment period, that it was rescinding its COVID-19 rule for international students. Instead of permitting international students—many of whom remain restricted to their home countries under international travel bans—to continue their education through remote learning under the March 13 Guidance, the July 6 Directive declared that all students on F-1 visas whose university curriculum was entirely online would be required to depart the country or risk facing deportation. In addition, students currently outside the United States, who are weeks from returning to Johns Hopkins campuses, would be barred from entering the United States. ICE also purported to require colleges and universities whose classes would be entirely online to submit an “operational change plan” no later than Wednesday, July 15, 2020—nine days after the change was announced.
11. The July 6 Directive did not stop there. It also announced that universities like Johns Hopkins that are contemplating a hybrid model—a mixture of online and in-person classes—would have to certify for each student on an F-1 visa that the “program is not entirely online, that the student is not taking an entirely online course load for the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” The Directive did not provide clarity as to what level of in-person education was required, saying only that
7 John Wingrove, President Trump Claims Coronavirus Will ‘Fade Away’ – as U.S. Sees 20,000 New Cases a Day, Time (June 18, 2020), https://time.com/5855541/trump-coronavirus-fade-away/. 8 JM Rieger, 19 times Trump said the coronavirus would go away, Wash. Post (July 2, 2020), https://www.washingtonpost.com/video/politics/19-times-trump-said-the-coronavirus-would-goaway/2020/04/30/d2593312-9593-4ec2-aff7-72c1438fca0e_video.html. 9 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM), https://twitter.com/realDonaldTrump/status/1280209946085339136.
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students should receive some in-person education such that their programs are “not entirely online.”10 Universities on a hybrid model would be required to issue a new Form I-20 for each of these students—in the case of Johns Hopkins, numbering in the thousands—by August 4, 2020.
12. ICE’s rash action was unaccompanied by any indication that it considered the health of university students, faculty, staff, or surrounding communities. It proceeded without any consideration of the reliance of both students and universities on ICE’s statements that the preexisting exemptions would be “in effect for the duration of the emergency” posed by the COVID-19 pandemic, which demonstrably continues at alarming levels to this day. It proceeded while ignoring the complete inability of students in certain countries to have access to other educational options or the difficulty of gaining last-minute admissions or transfers. It proceeded without the required noticeand-comment period. And it proceeded without repealing or grappling with the President’s declaration of a national emergency on which the March 13 Guidance was based.
13. The upshot now leaves hundreds of thousands of international students with no secure educational pathways within the United States. Just weeks before the fall semester starts, these students are largely unable to transfer to universities providing on-campus instruction, notwithstanding ICE’s suggestion that they might do so to avoid removal from the country. Moreover, for many students, returning to their home countries to participate in online instruction is impossible, prohibitively expensive, technologically infeasible, dangerous, or some combination of the foregoing.
14. ICE’s action also leaves universities across the country, including the various schools within Johns Hopkins, in the untenable dilemma of either moving forward with their carefully calibrated, thoughtful decisions to proceed with their curricula fully or partially online in the fall of
10 Student and Exchange Visitor Program, U.S. Immigration and Customs Enforcement, Broadcast Message: COVID-19 and Fall 2020 (July 6, 2020), https://www.ice.gov/doclib/sevis/pdf/bcm200701.pdf.
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2020, or to attempt, just weeks before classes resume, to provide in-person education in every one of its schools, while still needing to navigate the public health and safety considerations implicated by any such change. Ultimately, the July 6 Directive leaves Johns Hopkins and its students facing unavoidable but debilitating risk that the most fervent efforts to provide in-person education may be foiled midstream by circumstances altogether beyond their control.
15. Notably, even if it bowed to the Trump Administration’s transparent pressure to offer fully in-person education, Johns Hopkins and its students would still face the risk that the uptick in COVID-19 infections could result in new stay-at-home mandates that would require Johns Hopkins to return to fully virtual education once again in the midst of the academic term. Under the July 6 Directive, such a shift would cause the thousands of international students at Johns Hopkins—and millions nationwide—to be at risk of losing their F-1 visa status and require them to depart the United States within a matter of days, or be immediately deported simply because they are unable to obtain 15 weeks of in-person education, as required by the Directive.11
16. In effect, ICE has forced on Johns Hopkins and universities throughout the nation the Hobson’s choice between compromising, on the one hand, its academic mission and unique contributions to the global fight against COVID-19, or, on the other hand, protecting the health and safety of its students, faculty, and staff according to its own best judgment, as informed by its up-tothe-minute, world-leading expertise and data.
17. By all appearances, ICE’s decision reflects an effort by the federal government, consistent with President Trump’s public statements, to force universities to re-open in-person classes, irrespective of educators’ and experts’ assessments of the public health risks and the implications for international students both currently in the United States and abroad, some of whom under travel bans or consular closures have no ability to study in-person even if fervently committed to doing so. The
11 Id. 8

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effect is to put international students in an untenable position and to coerce universities into reopening without regard for the status of the global pandemic.
18. In suddenly overturning the careful planning Johns Hopkins and other universities underwent for the 2020–2021 academic year in reliance on ICE’s recognition that the COVID-19 pandemic compelled allowing international students to maintain their visa status even if their studies had been moved entirely online, ICE failed to consider numerous weighty interests. First, the July 6 Directive is itself arbitrary and capricious and an abuse of discretion under the Administrative Procedure Act (“APA”). Further, ICE’s action, in failing to provide notice or opportunity to comment, is procedurally defective under the APA and works a deprivation of Due Process for both students and universities. Moreover, the regulatory language is unconstitutionally vague, placing both universities and students trying to interpret the new requirements at risk of sanction for failing to comply with the Directive. Finally, among the interests that ICE ignored is the educational autonomy of universities, as constitutionally recognized, to fashion their educational programs in ways that best advance their pedagogical missions and protect the health and safety of students under their care.
19. The July 6 Directive should be set aside, and the government required to abide by the guidance issued on March 13, 2020—guidance on which universities and students predictably relied in planning a fall semester during an ongoing global pandemic. Because the Directive does not undo the presidential declaration of a national emergency, nor could it, there was no rational basis to undo the March 13 Guidance, which promised to remain “in effect for the duration of the emergency.”
20. Lastly, a temporary restraining order and permanent injunctive relief are warranted to provide emergency and interim relief in light of the pending July 15, 2020 certification date Defendants purport to impose, Johns Hopkins’ imminent re-opening dates by which students, faculty, and staff must finalize their plans, and the irreparable injury Johns Hopkins and its students will suffer unless the July 6 Directive is suspended during the pendency of this action.
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21. Johns Hopkins’ international students constitute a critical component of its academic mission. Rendering participation of much of its international student body impossible or insignificant will impair the educational experience for all Johns Hopkins students, faculty, and staff; deprive the university of innovative research contributions, including in the fields of public health and medicine during the age of a global pandemic; stunt the development of scholarship; and do grave harm to Johns Hopkins’ mission of bringing the benefits of discovery to the world.
THE PARTIES 22. Plaintiff Johns Hopkins University is a non-profit, private research university located across several campuses in Maryland, Washington, D.C., and elsewhere. It provides graduate and undergraduate instruction to approximately 27,000 students annually, including approximately 5,000 students who study in the United States on F-1 visas. Johns Hopkins brings this lawsuit on behalf of itself and its students holding F-1 visas. 23. Defendant United States Department of Homeland Security is a federal agency of the United States. 24. Defendant United States Immigration and Customs Enforcement is a division of the United States Department of Homeland Security. 25. Defendant Chad F. Wolf is the Acting Secretary of the United States Department of Homeland Security. He is sued in his official capacity. 26. Defendant Matthew Albence is the Acting Director of United States Immigration and Customs Enforcement. He is sued in his official capacity.
JURISDICTION AND VENUE 27. This Court has jurisdiction over this case pursuant to 28 U.S.C. § 1331 and 5 U.S.C. § 702. Johns Hopkins is an entity aggrieved by a final agency action promulgated by Defendants. See 5 U.S.C. § 702. Johns Hopkins brings this suit for declaratory and injunctive relief to set aside
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Defendants’ action as contrary to law and arbitrary and capricious, see id. §§ 705, 706, presenting a federal question, see 28 U.S.C. § 1331.
28. Sovereign immunity is waived under 5 U.S.C. § 702. 29. Venue in this Court is proper under 28 U.S.C. § 1391(e). Defendants are agencies of the United States and officers of those agencies acting in their official capacity; they reside in this District; and they promulgated the unlawful July 6 Directive from this District. 30. Johns Hopkins has standing to bring this case. Defendants’ actions will cause an imminent, concrete, and irreparable risk to Johns Hopkins University’s ability to achieve its educational mission unless halted by this Court. 31. Johns Hopkins also has standing to assert claims on behalf of its students holding F-1 visas because Defendants’ actions have encroached on the university’s constitutionally protected academic freedom and discretion to control its own curricula and student body. Furthermore, Defendants’ actions expose Johns Hopkins’ students to imminent, concrete, and irreparable risk of harm to themselves, their families, their educations, their short-term and long-term health, and their future education and employment prospects if Defendants’ actions are not enjoined by this Court. Protecting its students is at the core of Johns Hopkins’ mission and responsibilities, and injury to its students’ education and well-being on campus correspondingly injures Johns Hopkins. 32. This Court is authorized to grant the requested injunctive relief pursuant to Federal Rule of Civil Procedure 65 and 5 U.S.C. § 705.
FACTS Johns Hopkins’ Rights and Responsibilities to its Community 33. Founded in 1876, Johns Hopkins is one of the nation’s premier academic and research institutions. It has approximately 27,000 students across nine divisions on campuses in Maryland, Washington, D.C., and elsewhere. The university’s two undergraduate schools, the Krieger School of Arts and Sciences and the Whiting School of Engineering, are located on the Homewood campus in
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Baltimore. The medical school, nursing school, and Bloomberg School of Public Health are located in East Baltimore. The university is also comprised of the Peabody Institute, Paul H. Nitze School of Advanced International Studies (“SAIS”), School of Education, Carey Business School, and various other facilities.
34. Two hallmarks of Johns Hopkins are its focus on international studies through its world-renowned SAIS school and its unparalleled expertise in public health through its Bloomberg School of Public Health, which has played a leading role in informing the global community about the nature and spread of COVID-19.
35. As is customary for educational institutions constitutionally endowed with the discretion to determine both the delivery and content of its educational program, Johns Hopkins has made, and continues to make, swift, reasoned, and data-informed judgments about how best to protect the health and safety of its community during the COVID-19 pandemic, while enabling students to continue their academic pursuits. These decisions have been informed by both the university’s pedagogical mission, including to foster a rich and culturally sensitive international environment, as well as the comprehensive, real-time data Johns Hopkins and its Coronavirus Resource Center have assembled and studied.
The COVID-19 Pandemic 36. As Johns Hopkins’ public health experts know all too well, SARS-CoV-2, which causes the COVID-19 illness, is easily transmitted through human contact. The numbers of confirmed cases and deaths from COVID-19 have grown exponentially in the United States since January 2020 and are expected to continue to grow exponentially over the coming months. Indeed, according to Johns Hopkins University’s own Coronavirus Resource Center, millions have contracted the disease in the United States alone.12
12 Coronavirus Resource Center, Johns Hopkins University & Medicine, https://coronavirus.jhu.edu/map.html (last visited July 10, 2020).
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37. All human beings share a risk of contracting and, upon contraction, transmitting the virus that causes COVID-19. Any adult who contracts the virus may experience life-threatening symptoms, lifelong health consequences, and death.
38. New information regarding this virus is released daily by public health authorities. People who experience serious cases of COVID-19 and do not pass away face the prospect of protracted, difficult recovery, frequently entailing the need for extensive rehabilitation for profound reconditioning, loss of digits, permanent neurologic damage, and the irreversible loss of respiratory capacity.
39. People can also carry and spread the novel coronavirus but be asymptomatic or presymptomatic. As a result, testing or seclusion of only those who are symptomatic is an inadequate solution.
40. There is no vaccine against COVID-19, nor is there any known medication to prevent infection. The most effective ways to reduce the risk are to prevent vulnerable populations from being infected in the first place and to limit community spread. Physical distancing, or remaining physically separated from known or potentially infected individuals, and vigilant sanitation and hygiene are the most effective measures for protecting people from contracting the novel coronavirus.
41. Evidence from Johns Hopkins and other public health experts indicates that COVID-19 is likeliest to be transmitted through close human-to-human contact, especially indoors. This presents a particular risk for university campuses. Crowded classrooms, dining facilities, and dormitories are commonplace features of ordinary campus life and could lead to large-scale outbreaks of COVID-19 until the pandemic subsides.
42. Nationally, projections by the United States Centers for Disease Control and Prevention (“CDC”) indicate that more than 200 million people in the United States could be infected
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with the novel coronavirus over the course of the pandemic, and the most severe projections raise the specter of as many as 1.7 million deaths.13
43. Efforts to contain the spread of this highly contagious disease have included broad shutdowns of society. On March 16, 2020, the CDC and members of the national Coronavirus Task Force issued guidance advising individuals to adopt far-reaching physical distancing measures, such as working from home; avoiding discretionary travel, shopping trips, and gatherings of more than 10 people; and staying away from bars, restaurants, and food courts.14
44. Following this advice, many states including Maryland, as well as the District of Columbia, recognized the need to take dramatic steps to protect the health and safety of their residents from human-to-human and surface-to-human spread of COVID-19. They accordingly issued orders suspending or severely curtailing operations of non-essential businesses, schools, and other locations where individuals congregate. On March 13, 2020, President Donald J. Trump declared a national emergency in response to the COVID-19 pandemic.15
45. Notwithstanding these mitigation measures, COVID-19 cases continue to rise nationwide. The current guidance reflects a general policy of continued caution, and a particular concern with indoor gatherings.16 Notably, states that have relaxed physical distancing measures, including by allowing indoor gatherings and the opening of locations where individuals congregate— such as Texas, Arizona, California, and Florida—provide a cautionary tale. Such states are now
13 Sheri Fink, Worst-Case Estimates for U.S. Coronavirus Deaths, The New York Times (Mar. 13, 2020), https://www.nytimes.com/2020/03/13/us/coronavirus-deaths-estimate.html. 14 The President’s Coronavirus Guidelines for America, coronavirus.gov, https://www.whitehouse.gov/wp-content/uploads/2020/03/03.16.20_coronavirusguidance_8.5x11_315PM.pdf (last visited July 10, 2020). 15 President Trump, Proclamation on Declaring a National Emergency, supra note 2. 16 See generally DC Health, Government of the District of Columbia, https://coronavirus.dc.gov/ (“Individuals must continue to practice social distancing from persons not in their household.”) (last visited July 9, 2020).
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seeing renewed surges and record-setting numbers of COVID-19 cases, hospitalizations, and reduced
but ongoing deaths, including among younger victims.17
46. To date, there have been more than 3 million confirmed cases of COVID-19 in the
United States, resulting in more than 133,000 deaths.18 Both of these numbers continue to increase at
disturbing rates on a daily basis, and the declaration of national emergency remains in full force and
effect.
ICE’s Initial Response to the Pandemic
47. International students may attend American universities on nonimmigrant F-1 visas.
Eligibility to maintain F-1 status is governed by 8 C.F.R. § 214.2.
48. Students on F-1 visas must pursue a “full course of study” during their stay in the
United States. 8 C.F.R. § 214.2(f)(5)(i).
49. The regulation defines the extent to which online courses may count toward the full
course of study requirement. 8 C.F.R. § 214.2(f)(6)(i)(G) provides:
For F-1 students enrolled in classes for credit or classroom hours, no more than the equivalent of one class or three credits per session, term, semester, trimester, or quarter may be counted toward the full course of study requirement if the class is taken on-line or through distance education and does not require the student’s physical attendance for classes, examination or other purposes integral to completion of the class. An on-line or distance education course is a course that is offered principally through the use of television, audio, or computer transmission including open broadcast, closed circuit, cable, microwave, or satellite, audio conferencing, or computer conferencing. If the F-1 student’s course of study is in a language study program, no on-line or distance education classes may be considered to count toward a student’s full course of study requirement.
50. On March 13, 2020, the Student and Exchange Visitor Program (“SEVP”), a division
of ICE, issued guidance concerning F-1 students’ ability to maintain their visa status (the “March 13
17 See, e.g., Cecilia Smith-Schoenwalder, Deaths Starting to Increase in States With Coronavirus Resurgences, U.S. News (July 9, 2020), https://www.usnews.com/news/health-news/articles/2020-0709/coronavirus-deaths-increasing-in-states-with-resurgences. 18 See Coronavirus Resource Center, supra note 12.
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Guidance”). In its March 13 Guidance, ICE recognized the extraordinary circumstances posed by the COVID-19 pandemic and responded to “inquiries concerning the proper status” of international students in the United States on academic visas “who may have [to] face slightly different scenarios related to emergency procedures implemented by SEVP-certified learning institutions.”19
51. As relevant here, the March 13 Guidance addressed students attending a school that “temporarily stops in-person classes but implements online or alternate learning procedures.” The Guidance directed students to “participate in online or other alternate learning procedures and remain in active status” with SEVP. Accordingly, students could participate in remote learning implemented as a result of the pandemic—either in the United States or abroad—while retaining their visa status.
52. The March 13 Guidance indicated that it was a “temporary provision” that would remain “in effect for the duration of the emergency.” (Emphasis added.) SEVP also noted that the situation was “fluid” and “difficult” and that “SEVP will continue to monitor the COVID-19 situation and will adjust its guidance as needed.” (Emphases added.)
53. The President’s national emergency declaration has not been rescinded or terminated. An emergency in fact continues to persist, as daily COVID-19 cases in the United States have never significantly decreased and have recently begun spiking in several regions. In fact, cases today are higher than when the emergency declaration was issued.
54. Notwithstanding the promise in the March 13 Guidance that it would remain “in effect for the duration of the emergency,” on June 4, 2020 SEVP issued a “Frequently Asked Questions” document asserting that “SEVP has not issued guidance to international students and schools for the fall semester.”20
19 U.S. Immigration and Customs Enforcement, COVID-19: Guidance for SEVP Stakeholders, supra note 4. 20 U.S. Immigration and Customs Enforcement, Frequently Asked Questions for SEVP Stakeholders about COVID-19 (last updated June 4, 2020), https://web.archive.org/web/20200605003435/https:/www.ice.gov/doclib/coronavirus/covid19faq.pdf.
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In Reliance on the March 13 Guidance, Johns Hopkins Undertook Months of Planning to Determine How Best to Fulfill Its Academic Mission While Protecting Its Community 55. Johns Hopkins transitioned to online instruction on March 10, 2020 in order to protect
the health and well-being of its community, while enabling students to continue their academic pursuits. Over the spring and summer, in reliance on the March 13 Guidance, Johns Hopkins engaged in careful, deliberative planning processes that prioritized the health and safety of students, faculty, and staff, as well as the university’s institutional goals of delivering educational services and a meaningful experience to students. Johns Hopkins factored into its assessment the SEVP’s representation in the March 13 Guidance that, because of the pandemic, students with F-1 visas would not be required to attend in-person classes in order to retain their visa status, and that the exemption for F-1 students would continue during the pandemic.
56. Since March 2020, Johns Hopkins has engaged dozens of formal and informal committees and groups to inform its response to the pandemic, including a Health Advisory Group comprised of expert Johns Hopkins faculty charged with advising the university’s senior leadership on COVID-19 issues and ways to continue safely carrying out Johns Hopkins’ academic mission. Indeed, members of the Johns Hopkins Advisory Group are themselves members of the Maryland Governor’s Advisory Committee, and others advise other local, state, and federal officials. Senior university administrators have also been conferring on weekly, and at times daily, Incident Command Calls to ensure that the various schools within Johns Hopkins are able to continue providing their high-quality education in a remote environment and in compliance with public health guidance.
57. On May 5, 2020, the university launched a planning task force, which included six primary work groups—the Research Work Group, Academic Programs Work Group, Student Life Work Group, Health & Safety Work Group, Cross-Cutting Work Groups, and Advisory Groups — composed of 23 separate interdisciplinary teams from across the university, including faculty, staff,
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and students.21 Over the next eight weeks, each work group evaluated and documented options for a return to campus and provided the university’s deans with broad outlines of how campus operations might be conducted safely so that each school, department, and program could in turn develop detailed plans based on its individual needs and circumstances. As of July 9, 2020, the university had sent 47 unique messages to the Johns Hopkins community, and the work groups had published for public review and comment four draft reports and two final reports. The decisions reached in those reports were also informed by hundreds of Zoom calls, dozens of presentations, multiple student surveys, 788 unique feedback comments, and the discussions from seven town halls (with an eighth scheduled for today).
58. In addition to these formal structures, Johns Hopkins has consulted on an ongoing basis with epidemiologists, medical experts, industry experts, and others on a wide range of topics relevant to returning students to campus and protecting their safety during instruction.
59. Furthermore, Johns Hopkins has now become the leading source of data regarding the unprecedented COVID-19 pandemic, aggregating data from more than 188 countries or regions to track and model this fast-moving disease. Johns Hopkins’ experts in global public health, infectious disease, and emergency preparedness have been at the forefront of the international response to COVID-19. Indeed, the Johns Hopkins University Coronavirus Center has been extensively cited as the basis for government decisions and key reporting, including by the CDC, the White House, the United Nations, various state and local governments, and major journalistic publications.22
21 JHU 2020 Planning: Workgroups, Johns Hopkins University, https://covidinfo.jhu.edu/jhu-2020planning/workgroups/ (last visited July 10, 2020). 22 See, e.g., Centers for Disease Control and Prevention, COVID-19 Secondary Data and Statistics, https://www.cdc.gov/library/researchguides/2019novelcoronavirus/datastatistics.html (last visited July 9, 2020) (listing the Johns Hopkins’ online dashboard of reported cases in a list of “quality public health literature and resources”); Remarks by Vice President Pence in a Fox News Virtual Town Hall, Washington, D.C. (March 24, 2020), available at https://www.whitehouse.gov/briefingsstatements/remarks-vice-president-pence-fox-news-virtual-town-hall/ (Vice President Pence noting that the White House Coronavirus Task Force studies coronavirus data and numbers from various
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Johns Hopkins’ Re-Opening Plan Carefully Balanced the Academic Needs of Its Community with Concerns for Public Safety Amid an Ongoing Pandemic
60. Based on months of study and consultation, Johns Hopkins’ Bloomberg School of
Public Health was contemplating that there would not be any face-to-face instruction for the first and
second terms of the 2020–21 academic year. On June 30, 2020, Johns Hopkins also announced that,
countries through resources such as the Johns Hopkins Global Map); Ken Cuccinelli (@HomelandKen) Twitter (Feb. 24, 2020), https://twitter.com/homelandken/status/1232026318801338368?lang=en (“Has the Johns Hopkins map of the coronavirus stopped working for other people, or just me? https://gisanddata.maps.arcgis.com/apps/opsdashboard/index.html#/bda7594740fd40299423467b48e9 ecf6”); National Institutes of Health, Coronavirus news, funding and resources for global health researchers, https://www.fic.nih.gov/ResearchTopics/Pages/infectiousdiseases-coronavirus-cov.aspx (last visited July 9, 2020) (listing the Johns Hopkins COVID-19 interactive map on its list of coronavirus resources); Office of Mayor Muriel Bowser, Government of the District of Columbia, “COVID-19 Leave Restoration,” https://edpm.dc.gov/issuances/covid-19-leave-restoration/ (last visited July 9, 2020) (listing the Johns Hopkins COVID-19 Dashboard as a reference considered in evaluating and issuing this variance); Department of Labor and Industry, Commonwealth of Virginia, “Emergency Temporary Standard/ Emergency Regulation, Infectious Disease Prevention, SARSCoV-2 Virus That Causes COVID-19, §16 VAC 25-220,” https://www.doli.virginia.gov/wpcontent/uploads/2020/06/BP-Emergency-Regulation-Under-2.2-4011-SARS-CoV-2-That-CausesCOVID-19-FINAL-6.23.2020.pdf (June 24, 2020) (citing Johns Hopkins data throughout the briefing package to report on Virginia and nationwide cases of COVID-19); Kyle Swenson, Millions track the pandemic on Johns Hopkins’s dashboard. Those who built it say some miss the real story., Wash. Post, https://www.washingtonpost.com/local/johns-hopkins-tracker/2020/06/29/daea7eea-a03f-11ea9590-1858a893bd59_story.html (“Since launching in January, the university’s Coronavirus Resource Center has exploded in scope and popularity, garnering millions of page views and popping up in news coverage and daily conversation.”); K.K. Rebecca Lai, Are Countries Flattening the Curve for the Coronavirus?, N.Y. Times (Apr. 3, 2020), https://www.nytimes.com/interactive/2020/04/03/world/coronavirus-flatten-the-curve-countries.html (citing data collected by the Johns Hopkins University); Talal Ansari and Catherine Lucey, U.S. Hits 3 Million Confirmed Coronavirus Cases, Wall St. J., https://www.wsj.com/articles/new-coronaviruscases-hit-daily-record-in-u-s-with-60-000-11594198110 (relying on data from Johns Hopkins University’s coronavirus data center to report on daily record of new cases); Colleen Shalby and Luke Money, A third day of coronavirus surges in L.A. County brings alarm, L.A. Times, https://www.latimes.com/california/story/2020-07-01/a-third-day-of-huge-coronavirus-surges-in-lacounty-brings-alarm (citing the Johns Hopkins COVID-19 Dashboard to report on new cases); Joseph Guzman, Here are some of the best maps to track the coronavirus pandemic, The Hill, https://thehill.com/changing-america/well-being/prevention-cures/487469-here-are-some-of-the-bestmaps-to-track-the (“A Johns Hopkins University interactive map is being used widely to track the pandemic.”); United Nations Economic Commission for Africa, https://www.uneca.org/covid19/pages/dashboard (using Johns Hopkins tracking dashboard); UNStats COVID-19 response, https://covid-19data.unstatshub.org/datasets/bbb2e4f589ba40d692fab712ae37b9ac_2?geometry=61.931%2C37.779%2C10.955%2C63.199 (relying on Johns Hopkins data).
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with respect to its undergraduate students in the Krieger School of Arts and Sciences, the Whiting School of Engineering, the Peabody Institute, it would recommence some in-person classes at reduced capacity in the fall semester with appropriate public health measures in place, and that to the fullest extent possible, courses would be developed with mixed modality, giving students the option of participating in-person or virtually. Thus, while undergraduate programs would be offered in a hybrid modality, many graduate programs would vary in the provision of online and in-person instruction.
61. Consistent with its status as a leader in public health, Johns Hopkins also implemented a number of safety measures, including by securing rooms for students in nearby hotels in which students would be charged subsidized rates, despite the higher premium costs borne by the university, in order to reduce the number of students sharing rooms and to enhance safety on and around campus. In addition, to avoid the risk inherent in a potential late-autumn resurgence of the virus, Johns Hopkins also announced that in-person instruction for undergraduates would cease after the Thanksgiving holiday, thereby allowing those students to return home to their families without the burden and risks associated with a return to campus to complete the semester. Taken together, these nuanced, data-driven, fluid decisions and policies are the upshot of hundreds of hours of careful planning over weeks and months by senior administrators across each of Johns Hopkins’ several schools, with valuable input from Johns Hopkins’ public health specialists.
62. For Johns Hopkins, increasing the number of in-person sessions in response to an arbitrary dictate—quite different from ongoing exercise of discretion and flexibility, with the benefit of up-to-the-minute inputs and data—would unduly increase the risk to faculty, staff, and students of contracting COVID-19. While most faculty members are able to provide instruction remotely under the current virtual-learning plans, a fixed commitment to increase and maintain in-person sessions throughout the semester regardless of intervening developments would place these instructors, many of whom fall in at-risk categories, in peril of being infected with COVID-19. As in other universities,
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many faculty members at Johns Hopkins are over 60 years old. According to the CDC, older adults are at highest risk for severe illness from COVID-19, meaning they are more likely to “require hospitalization, intensive care, or a ventilator to help them breathe, or they may even die.”23
63. Johns Hopkins intends for its faculty members to focus on providing robust and meaningful learning experiences through the online medium. Requiring those faculty to commit themselves to greater on-campus instruction throughout the upcoming semester would substantially detract from that focus.
64. Were Johns Hopkins compelled to deviate from its own best judgments about the appropriate number and extent of in-person sessions, this would also increase the risk to staff members—including facilities workers, janitorial staff, support staff, and others—of contracting COVID-19 through increased physical interactions with students and other faculty and staff. Most of these staff members reside outside of the immediate vicinity of their workplaces and are at risk of spreading the virus as they move across Washington, D.C., and Maryland.
65. Students will also be at an increased risk of contracting COVID-19 if ICE succeeds in depriving Johns Hopkins’ schools and programs of the ability to set their curricula as they see fit based on the unpredictable conditions caused by the COVID-19 pandemic. Several graduate schools at Johns Hopkins, such as the School of Public Health, include students within an older demographic. Along with faculty members, a good many students fall within groups facing higher risk of infection, whether due to age, immuno-compromised conditions, other underlying conditions such as diabetes, or otherwise. Indeed, experts at Johns Hopkins’ own School of Public Health have advised specifically against further re-opening, and have assisted in creating concrete plans regarding the safest approach to proceeding in the fall 2020 semester.
23 Ctr. for Disease Control and Prevention, Coronavirus Disease 2019, Older Adults, https://www.cdc.gov/coronavirus/2019-ncov/need-extra-precautions/older-adults.html (last updated June 25, 2020).
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66. Students, too, relied on the March 13 Guidance. Many international students have already incurred substantial, irretrievable costs associated with attending Johns Hopkins in the 2020– 2021 academic year. Students have taken out loans, made travel arrangements to move to or near campuses, and entered leases for housing arrangements there.
67. Similarly, the university has undertaken great effort and incurred corresponding expense to plan for the return of its international students. Among other things, it has purchased and secured housing space that would safely accommodate its population of returning students and enable physical-distancing protocols. If students are unable or unwilling to return as expected, Johns Hopkins has no means of recovering its substantial outlays to date.
Without Warning, ICE Announces That It Will End The COVID-19 Exemptions 68. On July 6, 2020, without employing notice-and-comment rulemaking, or even alerting students or universities in any way that it would be revising its policy, SEVP issued the July 6 Directive, which an accompanying “News Release” described as announcing “modifications . . . to temporary exemptions for nonimmigrant students taking online classes due to the pandemic for the fall 2020 semester.”24 69. The July 6 Directive provided that “Nonimmigrant F-1 . . . students attending schools operating entirely online may not take a full online course load and remain in the United States. The U.S. Department of State will not issue visas to students enrolled in schools and/or programs that are fully online for the fall semester nor will U.S. Customs and Border Protection permit these students to enter the United States.” 70. Moreover, the July 6 Directive ordered that “[a]ctive students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring
24 U.S. Immigration and Customs Enforcement, SEVP modifies temporary exemptions for nonimmigrant students taking online courses during fall 2020 semester (July 6, 2020), https://www.ice.gov/news/releases/sevp-modifies-temporary-exemptions-nonimmigrant-studentstaking-online-courses-during.
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to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.” (Emphasis added.)
71. The July 6 Directive indicated that the “U.S. Department of Homeland Security plans to publish the procedures and responsibilities . . . in the near future as a Temporary Final Rule in the Federal Register.” As of the filing of this Complaint, no procedures or responsibilities have been published in the Federal Register.
72. The July 6 Directive further directed that “[s]chools that offer entirely online classes or programs or will not re-open for the fall 2020 semester must complete an operational change plan and submit it to” SEVP “no later than Wednesday, July 15, 2020”—this, despite no notice-andcomment period, no opportunity to respond or provide critical feedback on the consequences of the change, and no purported Temporary Final Rule yet being published.
73. Moreover, the July 6 Directive stated “[s]tudents attending schools adopting a hybrid model—that is, a mixture of online and in person classes—will be allowed to take more than one class or three credit hours online,” provided that for each such student, the school “certif[ies] to SEVP, through the Form I-20, ‘Certificate of Eligibility for Nonimmigrant Student Status,’ that the program is not entirely online, that the student is not taking an entirely online course load the fall 2020 semester, and that the student is taking the minimum number of online classes required to make normal progress in their degree program.” Compliance with this requirement would require the university to issue a new Form I-20 for each of its potentially thousands of students on F-1 visas and to do so within 21 business days of the July 6 Directive. Doing so is not only unduly burdensome, but, in many cases, impossible because students are generally not required to register for particular classes until closer to the start of the semester. The I-20 forms must be separately signed by both the university and student, under penalty of perjury, in order to certify compliance. Compliance is subject to auditing, and noncompliance is subject to severe sanctions, carrying long-term consequences.
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74. Neither the July 6 Directive nor its accompanying “News Release” nor the updated “Frequently Asked Questions”25 document reflects any consideration of key factors that should inform any responsible decision whether to force students holding F-1 visas to attend classes in person as a condition of maintaining their visa status—including when their school has decided to provide classes online only in order to safeguard the health of students, faculty, staff, and the surrounding community.
75. ICE’s Directive reflects no consideration of the effects it will have on the health of students, faculty, staff, or the surrounding communities.
76. Further, ICE’s action of July 6 does not account for the reality that the COVID-19 pandemic continues to this day and that record daily numbers of infections are being reported in the United States.
77. ICE’s action also does not account for the reliance of both students and universities— including Johns Hopkins—on ICE’s statements in the March 13 Guidance that the exemptions it announced were due to the COVID-19 pandemic and would be “in effect for the duration of the emergency.”
78. In fact, the July 6 Directive describes changes made in the March 13 Guidance as allowances made “during the height of the Coronavirus Disease (COVID-19) crisis”—entirely disregarding the fact that the present rate of documented cases of infection across the country exceeds that of mid-March by a considerable amount. And that rate continues to climb. For instance, in midMarch in the State of Maryland, the rate of additional infections was fewer than 120 over the course of five days (March 15–20); whereas in just one recent 24-hour period (July 8–9) an additional 586 cases have been confirmed.26 Likewise, in mid-March, Washington, D.C., saw an increase of approximately 70 cases over the same five-day period; whereas just yesterday an additional 73 cases
25 U.S. Immigration and Customs Enforcement, Frequently Asked Questions for SEVP Stakeholders About COVID-19, https://www.ice.gov/doclib/coronavirus/covid19faq.pdf (last updated July 6, 2020). 26 Maryland Dep’t of Health, Coronavirus Disease 2019 (COVID-19) Outbreak,
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have been confirmed.27 Nationwide, the delta between March 15 and March 20 totaled fewer than 5,000 cases; yesterday alone, an additional 59,886 cases have been confirmed.28
79. Defendants also failed to consider the absence of other options by which universities affected by the COVID-19 pandemic and concerned for their students’ health and welfare might provide their curricula to F-1 students.
80. The July 6 Directive will cause irreparable injury to Johns Hopkins and students on F-1 visas. For many students affected by the July 6 Directive, it is infeasible or impossible to attempt to transfer to a program that guarantees an in-person curriculum and therefore allows them to pursue their education from within the United States on F-1 visa status. These students therefore are at grave risk of being forced to leave the country. The adverse consequences of this sudden displacement are devastating financially and personally. In addition to incurring substantial expenses to make international travel arrangements in the midst of a pandemic that has significantly reduced the availability of air travel, as well as losing their homes—in many instances at great cost associated with broken leases—some students will be forced to upend their young children’s lives by returning to their home countries, while others families will be split apart in order to comply with the July 6 Directive.
81. Continuing F-1 students enrolled in a hybrid program are also at risk of losing their F-1 status by the terms of the July 6 Directive. That risk is especially great for F-1 students who are currently outside of the United States, to the extent the students cannot quickly return to the United States either because of travel restrictions or an inability to get an F-1 entry visa because consular processing of visa applications has been suspended, to this day, in response to the COVID-19
https://coronavirus.maryland.gov/ (last visited July 9, 2020). 27 District of Columbia Coronavirus Case Count, The New York Times, https://www.nytimes.com/interactive/2020/us/washington-dc-coronavirus-cases.html (last visited July 9, 2020). 28 Coronavirus in the U.S.: Latest Map and Case Count, The New York Times, https://www.nytimes.com/interactive/2020/us/coronavirus-us-cases.html (last visited July 10, 2020); see also Coronavirus Resource Center, Johns Hopkins University & Medicine,
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emergency. In turn, these students would lose their ability to pursue pre-completion internship and experiential learning opportunities, as well as their eligibility for work allowances in summer and fall 2021, because these students must maintain F-1 status for the full academic year preceding their access to practical training. See 8 C.F.R. § 214.2(f)(10). Many of these students have made enormous financial sacrifices to enroll in costly academic programs offered by Johns Hopkins and other institutions—an investment they likely will not recoup if the July 6 Directive impairs their ability to complete their programs.
82. For students with F-1 visas enrolled in a fully online program, the July 6 Directive prohibits those students from lawfully remaining in the United States to continue their studies. Unless this Court intervenes, these students will be required to make precipitous arrangements to return to their home countries amidst a worldwide pandemic that has caused nations to close their borders, especially to travelers from the United States, and has considerably limited international travel options. They must abandon housing arrangements they have made, breach leases, disrupt families, abandon their support networks and academic resources, pay exorbitant air fares, and risk COVID-19 infection on transoceanic flights. And if they cannot depart timely, they risk detention by immigration authorities and formal removal from the country that may forever mar their records and job opportunities and altogether bar their return to the United States for up to ten years. See 8 U.S.C. § 1182(a)(9).
83. While students may attempt to participate in their programs online from outside the United States, they face barriers if suddenly uprooted and forced to return home unexpectedly. In particular, they may have their research and learning inhibited by the absence of reliable Internet connections, or, indeed, any such connections or infrastructure.
https://coronavirus.jhu.edu/map.html (last visited July 10, 2020). 26

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84. For Johns Hopkins, losing its international students from its campus community prevents it from fulfilling its academic imperatives. The value of a Johns Hopkins education depends in large part on the diversity of perspective offered by these international students. Rendering their participation impossible or insignificant will impair the educational experience for all Johns Hopkins students, deprive the university of their innovative research contributions, stunt the development of scholarship, and undermine Johns Hopkins’ mission of bringing the benefits of discovery to the world. Moreover, Johns Hopkins also depends on some F-1 graduate students for teaching support in its undergraduate programs. Requiring these students to provide instruction from remote locations in their home countries, potentially with considerable time-zone disparities and variable Internet connectivity, will make it harder for faculty to make effective use of their student teaching aides.
85. The July 6 Directive will make continued study at Johns Hopkins impracticable for a sizable portion of the university’s F-1 visa students. The loss of the ability to perform research or fieldwork, to study on campus in libraries with extensive academic resources, or even participate in basic coursework under reasonable conditions, will force many students to interrupt their studies. The predictable result will be that many students will take leaves of absence or withdraw from Johns Hopkins as a direct result of the July 6 Directive. Such outcomes can be financially disastrous for schools, which often cannot afford severe reductions in class sizes without being forced to drastically cut their enrollment in future terms: in particular, the Johns Hopkins Carey Business School has an extensive international student body and will face serious financial stress as a result of the number of students who may be forced to withdraw or defer enrollment.
86. The tremendous uncertainty that the July 6 Directive imposes on F-1 visa holders is especially deleterious. Pursuant to the Directive, students have been forced to make pivotal decisions—often of great personal and professional significance—by July 15. This upheaval comes with weighty potential legal ramifications—often due to factors entirely outside the students’ control.
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Should F-1 students decide to risk their health by enrolling in in-person coursework by July 15, for the sake of complying with the July 6 Directive, their visa status may still remain at risk in the event that, for example, state or local authorities respond to a resurgence of the virus sometime during the fall semester by ordering Johns Hopkins to cease all in-person education. Such a student, having carefully complied with the July 6 Directive, possibly at great personal cost, may suddenly find herself out of compliance with her visa requirements should the Washington, D.C., or Maryland authorities determine that public safety requires transitioning all classes online. In addition, Johns Hopkins has itself reserved the right to decide to return to fully online classes if public health circumstances so dictate, and the July 6 Directive not only unduly interferes with that right and decisionmaking for the university, but also may result in substantial negative consequences for both Johns Hopkins and its international students.
87. Such a scenario would only compound the personal risks to F-1 visa holders. As mentioned previously, the CDC has recognized the dangers of travel during the pandemic. See supra ¶¶ 42–43. Thus, if the COVID-19 crisis becomes even further exacerbated (as it is widely expected to in the fall),29 and local or state governments or public health considerations suddenly mandate the closure of Johns Hopkins’ in-person instruction, students with F-1 visas within the United States would be forced into the especially precarious position of having to travel during a spike in infections in order to comply with the July 6 Directive mandating that they quickly leave the country just as infections are surging.
29 See John Wagner et al., Fauci, top health officials warn of covid-19 surge, contradict Trump on testing, The Washington Post (June 23, 2020), https://www.washingtonpost.com/politics/2020/06/23/fauci-testimony-coronavirus-house/ (citing four top U.S. health officials, including Anthony Fauci and Assistant Secretary for Health Brett Giroir, who “warned [at a Senate hearing] of a difficult fall and winter because the U.S. health-care system will probably battle two highly contagious, respiratory viruses then: the novel coronavirus and the seasonal flu,” and “said it was inevitable the country would see more cases as states continued to reopen”).
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88. The uncertainty worked by the July 6 Directive therefore imposes not only significant safety risks, but also acute legal risks upon F-1 students. Should a student suddenly be found out of compliance with her F-1 visa requirements, she faces potential deportation, detention, loss of work authorization, and a blemished legal record that may work serious damage to her professional prospects in the future. Notably, although students on F-1 visas may be entitled to additional time to prepare for departure after the end of the school year, 8 C.F.R. § 214.2(f)(5)(iv), “an F–1 student who fails to maintain a full course of study without the approval of the DSO or otherwise fails to maintain status is not eligible for an additional period for departure.” Id. Pursuant to the July 6 Directive, a full online course will not suffice, so any F-1 students who either elect a fully remote course load—or even those who choose to take in-person classes, but which classes can be terminated at any point by local or municipal authorities—lose the benefit of such a grace period and would be forced to leave the country in short order.
89. The July 6 Directive will also cause immense harm to Johns Hopkins as a whole. Many of the university’s curricular programs depend on the presence and diversity of international students and help our students prepare for the world. The curriculum at the University’s various Schools—from the School of Advanced International Studies to its undergraduate programs to its School of Medicine—draw frequently on the perspectives of international students, including midcareer public officials from around the world who bring unique viewpoints about different approaches to governance and policy. The absence of such expertise and perspective diminishes the education for the university and all of its students.
90. Furthermore, by forcing Johns Hopkins into a state of uncertainty over the new regulations, the Directive also threatens Johns Hopkins with legal consequences, including a loss of its SEVP certification—and thus its ability to enroll international students (a crucial demographic for all Johns Hopkins schools). Indeed, if the SEVP determines that a school is not in compliance with its
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reporting requirements, the SEVP can review a school’s certification and decide to withdraw it. 8 C.F.R. § 214.3(h)(3)(iii) (review); 8 C.F.R. § 214.4(b)(withdrawal). When the certification is withdrawn, schools may, at the SEVP’s discretion, effectively be prohibited from enrolling new F-1 students because the school could be prohibited from creating the necessary forms and reports. 8 C.F.R. § 214.4(i). Furthermore, the SEVP can also deny Johns Hopkins University’s SEVP request for re-certification when the university is required to re-certify two years after the date of the previous SEVP certification. See 8 C.F.R. § 214.3(h)(2) (recertification on two-year cycles). In order to be eligible for re-certification, a school must show that it “has complied during its previous period of certification or recertification with recordkeeping, retention, and reporting requirements and all other requirements of paragraphs (g), (j), (k), and (l) of this section.” Id. § 214.3(a)(3)(ii)(B).
91. By creating the risk of withdrawal from Johns Hopkins or deportation, Defendants have put both the university and its students to an impossible choice: lose numerous students who bring immense benefits to the school or take steps to retain those students through a rigid, unvarying commitment to in-person classes, even to the extent those steps contradict the judgments each school would otherwise make about how best to protect the health of the entire university community. Much like its F-1 students, as a result of the July 6 Directive, Johns Hopkins itself has been placed at the mercy of factors entirely outside of its control. Even if the university undertakes the immense burden of processing thousands of I-20 forms in a timely fashion over a very short period, and alters its carefully crafted curricula to ensure that in-person options are available at all schools, the university faces the obvious and unavoidable risk that it may still find itself out of compliance with the Directive. Specifically, should public health considerations or further government directives force the university to go purely online in the face of a fall 2020 viral resurgence, Johns Hopkins will be unable to satisfy conditions of the Directive despite its most Herculean efforts.
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92. The dilemma the Directive poses for Johns Hopkins’ overall planning compromises welfare and pedagogy across the university and its entire student body. As things previously stood, Johns Hopkins had carefully and conscientiously planned—with input from all concerned, including its world-class experts on public health—to put on the best curricula and offerings it could over the course of the upcoming semester, subject to ongoing adjustments and continually balancing the risks from COVID-19 against various educational objectives. For some programs, that meant a hybrid approach; for others, it meant relying exclusively or predominantly on online classes. The latter, in some contexts, actually could be preferable from a pedagogical perspective, when compared to the inclass alternative, attended by necessary physical distancing. For instance, a professor might find it easier (and safer) to review a student’s work on a math problem by sharing a screen via Zoom, as opposed to physically peering (at a distance) over the student’s shoulder in a classroom. And it would follow that the online learning opportunity would in some instances be preferred there. But the Directive now skews the calculus in favor of in-person classes, very likely at the expense of pedagogy as well as potentially public health. As of today, the July 6 Directive is putting Johns Hopkins to an unfair and perverse choice—Johns Hopkins must either disenfranchise its international students or else compromise its pursuit of its academic mission based on ongoing consideration of data and exercise of academic discretion while it continues to account for and cope with a pandemic.
93. This problem is compounded by the impenetrable vagueness of the Directive’s terms. For instance, the Directive mandates the university certify that “the program is not entirely online” and “that the student is taking the minimum number of online classes required to make normal progress in their degree program.” What that means is nowhere spelled out, leaving universities only to guess at the requirements for compliance, as well as predict the future of an uncertain and evolving global pandemic—after all, it is impossible for any university to know whether a program will or will not be “entirely online” at the time of certification given that public health requirements may lead
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governmental authorities to mandate that Johns Hopkins and other universities cease in-person courses and go back to fully online education.
94. Still worse, recent statements by Administration officials have only added to the confusion: Acting Deputy Secretary of Homeland Security Cuccinelli indicated Tuesday that international students could remain in the United States as long as they receive at least some face-toface instruction: “Anything short of 100 percent online classes,” he told CNN in an interview.30 Again, even if universities undermine their assiduous efforts to create the optimal learning environment for their students under the circumstances, altering their curricula to provide in-person instruction, it is still far from clear what level of in-person education precisely will prevent them from losing their SEVP accreditation—a credential that is vital to Johns Hopkins and other universities in the program.
95. Notably, the Administration has acknowledged that ICE’s decision is designed to force universities to conduct in-person classes notwithstanding the considered judgments of university and public health officials that it may not be safe or educationally advisable to do so in certain circumstances.31 As Mr. Cuccinelli stated on July 7, 2020, the ICE Directive will “encourage schools to re-open.”32 ICE’s decision also reflects the Administration’s continued efforts to limit and reduce the presence of F-1 international students in the United States. As recently as this week, President Trump tweeted insisting upon schools re-opening in the fall,33 and—just yesterday—emphasized his
30 Susan Svrluga and Nick Anderson, Harvard, MIT sue Trump administration to protect student visas, escalating fight over online learning, Wash. Post (July 8, 2020) https://www.washingtonpost.com/education/2020/07/08/harvard-mit-international-students-ice/. 31 Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM), https://twitter.com/realDonaldTrump/status/1280209946085339136?s=20. 32 John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools to re-open’, The Hill (July 7, 2020), https://thehill.com/homenews/administration/506248cuccinelli-says-rule-forcing-international-students-to-return-home. 33 Trump, supra note 31 (“SCHOOLS MUST OPEN IN THE FALL!!!”).
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disagreement with the findings of the nation’s leading infectious disease experts.34 In the absence of a
clear scientific or public health rationale for its action, one can only conclude that it is driven solely by ill-considered political motivation.35
CLAIMS FOR RELIEF Count I (Violation of Administrative Procedure Act, 5 U.S.C. § 706)
The July 6 Directive Is Arbitrary and Capricious 96. Plaintiff incorporates by reference the allegations of the preceding paragraphs.
97. The Administrative Procedure Act prohibits agency action that is arbitrary and
capricious.
98. An agency regulation is arbitrary and capricious if (among other things) the agency
(1) failed to examine the relevant data and articulate a satisfactory explanation for its action, including
a rational connection between the facts found and the choice made; (2) failed to consider an important
aspect of the problem; (3) offered an explanation for its decision that runs counter to the evidence
before it; or (4) defies the text of a statute or reflects an unreasonable interpretation thereof.
99. The July 6 Directive fails on several grounds.
100. First, the July 6 Directive is arbitrary and capricious because it fails to articulate any
basis for ICE’s action. The only rationale that Defendants have offered is that “as many institutions
across the country re-open, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.”36 The assertion that “many” “institutions” are “re-open[ing]” is
34 Donald J. Trump (@realDonaldTrump), Twitter (July 8, 2020, 9:33 AM), https://twitter.com/realDonaldTrump/status/1280857657365200902 (“I disagree with @CDCgov on their very tough & expensive guidelines for opening schools. While they want them open, they are asking schools to do very impractical things. I will be meeting with them!!). 35 Donald J. Trump (@realDonaldTrump), Twitter (July 8, 2020, 9:16 AM), https://twitter.com/realDonaldTrump/status/1280853299600789505 (“In Germany, Denmark, Norway, Sweden and many other countries, SCHOOLS ARE OPEN WITH NO PROBLEMS. The Dems think it would be bad for them politically if U.S. schools open before the November Election, but is important for the children & families. May cut off funding if not open!” (emphasis added)). 36 U.S. Immigration and Customs Enforcement, Broadcast Message: COVID-19 and Fall 2020 (July
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so vague as to be meaningless for present purposes. Whatever it means, however, the July 6 Directive makes no effort to articulate a logical relationship between that premise and Defendants’ conclusion that an abrupt change in education policy is warranted. Defendants’ failure to provide a discernible explanation for the July 6 Directive renders the action arbitrary and capricious.
101. Separately, the July 6 Directive is arbitrary and capricious because it entirely fails to consider an important aspect of the problem facing the agency. The Directive makes no mention of the dilemma it foists upon universities like Johns Hopkins and its students, faculty, and staff. After months of careful deliberation, scrupulous planning, and close attention to local conditions at Johns Hopkins, the university’s schools and other programs adopted tailor-made plans of operation for the fall semester. These plans carefully balance the health and safety of faculty, students, staff, and their respective families with Johns Hopkins’ and its various programs’ educational imperatives. The July 6 Directive scuttles these plans and imposes a harsh, arbitrary paradigm that forces Johns Hopkins to choose between, on the one hand, preserving the physical health and safety of its community by its own best lights, or, on the other, fulfilling an educational mission that is predicated upon its international students remaining in the United States. Moreover, the Directive utterly fails to consider the fact that, far from being over or substantially reduced, the COVID-19 pandemic is at its height in the United States. That is precisely why the agency acted in an arbitrary and capricious manner when it attempted to depart from the March 13 Guidance, which was promised to be in effect during the pendency of the national emergency.
102. Additionally, the July 6 Directive is arbitrary and capricious because it fails to address the serious reliance interests that Defendants’ prior guidance engendered. Defendants’ change in policy required them, at a minimum, to address past practice regarding the SEVP and to supply reasoned analysis for their about-face. But they failed to do so. The July 6 Directive departs from
6, 2020), https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf. 34

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prior guidance that ICE issued on this subject, including the explicit assurance on March 13 that the exemptions for F-1 visa holders due to COVID-19 would be “in effect for the duration of the emergency,” without any analysis of how universities like Johns Hopkins and its students were relying on that assurance. This renders Defendants’ action arbitrary and capricious.
103. To the extent there is any colorable explanation for the Directive, it must implicitly be that the emergency ICE acknowledged in its March 13 Guidance has passed. That emergency posed by COVID-19 is what expressly drove the issuance of the March 13 Guidance, and would remain ICE’s lodestar for any future guidance. That is, once the emergency ended, so might the March 13 Guidance. But in the absence of any change in the condition giving rise to the March 13 Guidance— the emergency posed by the pandemic itself—it is arbitrary and capricious for ICE nonetheless to abandon such Guidance at a time when the COVID-19 emergency was worsened, not dissipated, according to the available data. This is a quintessential example of agency arbitrariness and caprice.
104. The only substantive explanation for the July 6 Directive is a constitutionally invidious one. Instead of bearing any rational relationship to public health or pedagogy, the Directive effectuates a desire by the President to make universities like Johns Hopkins bend their academic enterprise for political purposes. That is how and why the President and his Administration are holding hostage students’ visa status: to use them as leverage by which to force the country’s universities to re-open, without regard for public health, student safety, or actual learning.37 Far from providing a valid justification for agency action, such reasoning poses grave constitutional offense.
105. For these reasons and others, the July 6 Directive is arbitrary and capricious and violates the Administrative Procedure Act.
Count II (Violation of Administrative Procedure Act, 5 U.S.C. § 706) The July 6 Directive is not in Accordance with Law
106. Plaintiff incorporates by reference the allegations of the preceding paragraphs.
37 See, e.g., Donald J. Trump (@realDonaldTrump), Twitter (July 8, 2020, 9:330 AM), 35

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107. The Administrative Procedure Act prohibits agency action that is not in accordance
with law.
108. By compelling Johns Hopkins to increase its use of in-person instruction or else suffer
irreparable harm, the July 6 Directive defies established law acknowledging that the United States is
in the midst of a national crisis resulting from the COVID-19 pandemic.
109. The President declared on March 13, 2020 that “the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020.”38 That followed a similar
declaration from the Secretary of Health and Human Services, who determined on January 31, 2020
that, “as a result of confirmed cases of 2019 Novel Coronavirus . . . a public health emergency exists and has existed since January 27, 2020, nationwide.”39 The President’s declaration on March 13 gave “HHS important powers to enhance state and local communities’ ability to respond to the outbreak.”40
110. On March 13, 2020, the same day that the President declared a national emergency,
ICE announced that, as a result of the COVID-19 pandemic, students holding F-1 visa status enrolled only in online courses would not lose their immigration status.41 The announcement stated that “[t]his
temporary provision is only in effect for the duration of the emergency.”
https://twitter.com/realDonaldTrump/status/1280857657365200902 (emphasis added). 38 Proclamation No. 9994, 85 Fed. Reg. 15337 (Mar. 13, 2020), available at https://www.whitehouse.gov/presidential-actions/proclamation-declaring-national-emergencyconcerning-novel-coronavirus-disease-covid-19-outbreak/. 39 Dep’t of Health and Human Serv., Determination That a Public Health Emergency Exists (Jan. 31, 2020), https://www.phe.gov/emergency/news/healthactions/phe/Pages/2019-nCoV.aspx. 40 Dep’t of Health and Human Serv., Statement from HHS Secretary Azar on President Trump’s National Emergency Declaration (Mar. 13, 2020), https://www.hhs.gov/about/news/2020/03/13/statement-from-hhs-secretary-azar-on-president-trumpsnational-emergency-declaration.html. 41 U.S. Immigration and Customs Enforcement, COVID-19: Guidance for SEVP Stakeholders (Mar. 13, 2020), https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.13.20 .pdf.
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111. By making international students taking an “entirely online course load” ineligible for F-1 visas, the July 6 Directive contravenes ICE’s March 13 Guidance. But the July 6 Directive does not purport to rescind, reconsider, or otherwise amend the March 13 announcement. It simply proceeds on the unexplained, indefensible premise that the national emergency that prompted the March 13 Guidance has passed. That premise, however, contradicts not only reason but also law: both the President’s March 13 declaration of a national emergency and the Secretary of Health and Human Services’ January 27 determination continue in effect today.
112. Insomuch as the July 6 Directive is contrary to the Administration’s own declaration and determination of a national emergency and the acknowledgement of same in ICE’s March 13 Guidance, it is contrary to law.
Count III (Violation of Administrative Procedure Act, 5 U.S.C. §§ 553, 706) The July 6 Directive Was Promulgated Without Observance of Procedure Required by Law
113. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 114. The Administrative Procedure Act requires a federal agency to notify interested parties of any rule it proposes adopting. The notice must include enough detail of the regulation’s content, and of its factual and legal basis, so as to allow for meaningful and informed comment by interested parties. An agency commits disabling procedural error when it fails to reveal portions of the factual basis underlying a regulation. 115. The July 6 Directive issued by ICE is a rule within the meaning of the Administrative Procedure Act because it is an agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy. 116. The July 6 Directive is not an interpretative rule, general statement of policy, or rule of agency organization, procedure, or practice. Instead, it is a substantive rule that alters the rights and obligations of students and universities under the law.
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117. Absent good cause for not doing so, ICE was required to provide notice of its proposal, an opportunity for public comment, and an explanation of the rule ultimately adopted. Its failure in this regard should be fatal in and of itself. Nor has ICE even attempted to make a reasoned “good cause” finding for failing to follow the APA’s procedural requirements here.
118. Although dressed in the guise of a “Temporary Rule,” the Guidance effectuates important change and carries profound ongoing and permanent effects for universities and their students, and is final for relevant purposes—particularly for the academic semester and year now about to commence. ICE has offered no justification for failing to afford any semblance of the process and deliberation that would be associated with a final rule.
119. Defendants’ failure to provide notice and an opportunity to comment prior to promulgating the July 6 Directive violates the Administrative Procedure Act.
Count IV (Due Process) Failure To Provide Notice and an Opportunity to be Heard and Void for Vagueness 120. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 121. The Due Process Clause of the Fifth Amendment guarantees that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” At its core, due process promises both effective notice and a meaningful opportunity to be heard. 122. Notice of a deprivation of a property interest must convey sufficient information for interested parties to have an opportunity to present their objections. In other words, due process requires that a party facing deprivation of its property be given notice of the case against it. 123. The opportunity to be heard must (barring exceptional circumstances not present here) precede the deprivation. And, at a minimum, a party being deprived of property must have a meaningful opportunity to present its case to a neutral decisionmaker. 124. Similarly, administrative rules that fail to provide regulated parties fair notice of what is required of them, or lack the precision and guidance necessary to ensure that those enforcing the
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law do not act in an arbitrary or discriminatory way, are too vague to be enforced consistent with the Due Process Clause.
125. The July 6 Directive deprives Johns Hopkins and its students of property interests, including (among other things) (i) the benefit of its intensive, months-long effort to craft a sensible and safe plan for providing education to its students; (ii) tuition payments from international students who will choose not to enroll because doing so from outside the United States is impractical, impossible, or not equivalent to the educational program to which they applied; (iii) resources required to recertify nearly 5,000 students’ I-20 forms in compliance with the July 6 Directive, which would require, at a minimum, 1,000 hours of work diverted from other responsibilities, every time there is a change in the university’s instructional model; (iv) investments made in affording housing and educational opportunities that international students would now be precluded from availing themselves of and paying for; and (v) possible loss of one or more programs that depend on international students as their life blood.
126. Defendants provided no notice whatsoever of this deprivation. The July 6 Directive was issued on the first business day after Independence Day (without any prior indication that ICE was considering a change in position), little more than a week before a July 15 decision was due as to online education, and only weeks before the fall semester was scheduled to begin.
127. Nor have Defendants provided a meaningful opportunity to be heard. There is no indication that the July 6 Directive is merely under consideration or open for debate. It states Defendants’ new policy as it will be enforced, on pain of deportation and life-altering sanctions, starting this week. Johns Hopkins never had an opportunity to contest the deprivation, to persuade ICE to retain the position it announced on March 13, or even to explain the need, at a bare minimum, for clear guidance and opportunity to plan.
39

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128. Defendants’ absence of process not only deprived Johns Hopkins of constitutional rights, but it also resulted in a rule that is hopelessly vague and leaves Johns Hopkins mystified as to how it and its students are meant to comply, even as signed certifications of compliance, under penalty of perjury, will be coming imminently due. In particular, the July 6 Directive fails to provide adequate notice of what Johns Hopkins and its international students must do to retain their F-1 visa status. The July 6 Directive requires Johns Hopkins to certify that international students are not taking an “entirely online course load,” but it provides no guidance regarding what qualifies as in-person instruction sufficient to make a student’s course load not “entirely online.” These indeterminate standards illustrate the danger of vague regulations—danger that is compounded by the inability to comment and alert ICE to the practical questions that need to be answered, clearly and right up front, in order for universities to understand their obligations and plan.
129. While left bereft of key specifics and in the dark as to what ICE envisions, Johns Hopkins can only speculate about what is required for its thousands of international students to qualify for F-1 visas, while left at the mercy of ICE. Depending on how it subsequently construes and applies its cryptic guidance, ICE may at its discretion reject Johns Hopkins’ determinations and even potentially fault and sanction Johns Hopkins during an audit process for perceived noncompliance and purported false statements in the Form I-20 certification process, including by removing Johns Hopkins from the SEVP. Its students, meanwhile, could face significant penalties, including deportation and removal of visa eligibility for up to ten years under 8 U.S.C. § 1182(a)(9).
130. ICE violates the Due Process Clause by taking such a hide-the-ball approach to regulating sensitive immigration matters that carry such momentous stakes for universities and students whose programs, degrees, and futures depend on understanding and following agreed parameters.
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Count V (Unconstitutional Conditions) The July 6 Directive Requires Forced Assembly as a Condition of Receiving F-1 Visa Status and
Usurps Academic Freedom in Violation of the First Amendment 131. Plaintiff incorporates by reference the allegations of the preceding paragraphs. 132. The government may not require a person to give up a constitutional right in exchange for a discretionary benefit conferred by the government. 133. The Academy enjoys unique constitutional status. Universities’ educational autonomy falls under the protective umbrella of the First Amendment to the United States Constitution. Part and parcel of that educational autonomy is educators’ exercise of discretion—and discharge of responsibility—to balance the pursuit of their institutions’ academic mission with the health and safety of students under their care. Indeed, nothing can be more sacrosanct within the Academy. 134. The July 6 Directive upends this constitutional principle and does violence to the notion that universities should be left free to determine for themselves how best to educate their students. Specifically, the July 6 Directive impermissibly cudgels Johns Hopkins to forsake its carefully calibrated judgment—informed by the world’s leading scientists and COVID-19 experts— about the scheduling and delivery of educational content. Only by caving to ICE’s drastic edict and revising its careful planning can Johns Hopkins protect international students from being summarily stripped of their immigration status and forced to flee the country. At bottom, the July 6 Directive conditions the ability of Johns Hopkins’ international students to enter or remain in the United States—and by extension, the university’s ability to carry out its academic function and mission—on the forced transfer from the university to the government of the right to make protected academic judgments and determine how and under what conditions to provide instruction. That is impermissible. 135. Relatedly, the July 6 Directive forces international students to choose between enjoying the benefits of their educational visas and exposing themselves to greater risk of contracting
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Case 1:20-cv-01873 Document 1 Filed 07/10/20 Page 42 of 43 a potentially deadly and incurable disease. The government is wrong to impose that choice, and its attempt to do so is flatly unconstitutional.
PRAYER FOR RELIEF Wherefore, Johns Hopkins respectfully seeks the following relief: 1. A temporary restraining order and preliminary and permanent injunctive relief preventing Defendants from enforcing the policy announced in ICE’s July 6 Directive, or promulgating it as a Final Rule; 2. An order vacating and setting aside the policy announced in the July 6 Directive and reinstating the March 13 Guidance; 3. A declaration that the policy announced in the July 6 Directive is unlawful; 4. An order awarding Plaintiff its costs and attorney’s fees; and 5. Any and all other such relief as the Court may deem appropriate.
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DATED: July 10, 2020

Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN LLP

By /s/ William A. Burck William A. Burck (D.C. Bar No. 979677) Derek L. Shaffer (D.C. Bar No. 478775) 1300 I Street NW, 9th Floor Washington, DC 20005 (202) 538-8000 williamburck@quinnemanuel.com derekshaffer@quinnemanuel.com
Kathleen M. Sullivan* Crystal Nix-Hines* Shon Morgan* Marina Lev* 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 (213) 443-3000 kathleensullivan@quinnemanuel.com shonmorgan@quinnemanuel.com crystalnixhines@quinnemanuel.com marinalev@quinnemanuel.com
*Applications for admission pro hac vice to be filed
Attorneys for Plaintiff Johns Hopkins University

43

 
 Case 1:20-cv-01873 Document 9 Filed 07/13/20 Page 1 of 2

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants

Case No. 20-cv-1873

MOTION FOR A TEMPORARY RESTRAINING ORDER AND PRELIMINARY INJUNCTION
Pursuant to Fed. R. Civ. P. 65 and LCvR 65.1, Plaintiff Johns Hopkins University hereby moves the Court to issue a Temporary Restraining Order and Preliminary Injunction requiring that Defendants must (1) completely refrain from enforcing Broadcast Message 2007-01, entitled “COVID-19 and Fall 2020,” issued on July 6, 2020, and available at https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf, and (2) continue to treat as fully operative its “COVID-19: Guidance for SEVP Stakeholders,” issued March 13, 2010, and available at https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus Guidance_3.13.20.pdf.

Case 1:20-cv-01873 Document 9 Filed 07/13/20 Page 2 of 2

In support of this motion, Johns Hopkins relies upon the attached memorandum of law, the attached Declaration of Derek L. Shaffer and accompanying exhibits, the attached Declaration of Sunil Kumar, the attached Declaration of Stephen Gange and accompanying exhibits, and the attached Declaration of Ellen MacKenzie. Johns Hopkins also seeks to rely on three additional declarations that, by separate motion, it respectfully seeks to file pseudonymously.
ORAL ARGUMENT REQUESTED.

DATED: July 13, 2020

Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN LLP

By /s/ William A. Burck William A. Burck (D.C. Bar No. 979677) Derek L. Shaffer (D.C. Bar No. 478775) 1300 I Street NW, 9th Floor Washington, DC 20005 (202) 538-8000 williamburck@quinnemanuel.com derekshaffer@quinnemanuel.com
Kathleen M. Sullivan* Crystal Nix-Hines* Shon Morgan* Marina Lev* 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 (213) 443-3000 kathleensullivan@quinnemanuel.com shonmorgan@quinnemanuel.com crystalnixhines@quinnemanuel.com marinalev@quinnemanuel.com
*Motion for admission pro hac vice pending
Attorneys for Plaintiff Johns Hopkins University

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 1 of 53

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants.

Case No. 20-cv-1873

MEMORANDUM IN SUPPORT OF JOHNS HOPKINS’ MOTION FOR A TEMPORARY RESTRAINING ORDER AND
PRELIMINARY INJUNCTION

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 2 of 53
TABLE OF CONTENTS Table of Authorities........................................................................................................................ iv Introduction......................................................................................................................................1 Background ......................................................................................................................................4
A. Johns Hopkins, The COVID-19 Pandemic, And The Government’s Response ......4 B. Johns Hopkins’ Preparation For The Fall 2020 Semester........................................7 C. The July 6 Directive.................................................................................................9 D. The Impact Of ICE’s Change In Policy .................................................................12 Legal Standards..............................................................................................................................16 Argument .......................................................................................................................................17 I. Johns Hopkins Is Likely To Prevail On The Merits...........................................................17 A. The July 6 Directive Is Arbitrary And Capricious .................................................17
1. The government failed to articulate any rationale (let alone a plausible one) for the July 6 Directive ......................................................................18
2. The July 6 Directive fails to consider important aspects of the problem...21 3. The July 6 Directive fails to consider Johns Hopkins’ and its students’
reliance on ICE’s prior guidance................................................................23 B. The July 6 Directive Is “Otherwise Not In Accordance With Law”......................25 C. The Government Violated The APA By Failing To Provide Notice Or A
Meaningful Opportunity For Comment On The July 6 Directive .........................26 D. Both The July 6 Directive And The Process That Produced It, Violate The Due
Process Clause .......................................................................................................29 1. The government failed to provide notice and an opportunity to be heard .29 2. The July 6 Directive is void for vagueness................................................33 E. The July 6 Directive Usurps Academic Freedom And Imposes Unconstitutional Conditions ..............................................................................................................35 II. Absent An Injunction, Johns Hopkins Will Suffer Irreparable Harm ................................38
ii

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 3 of 53 III. The Balance Of Equities And Public Interest Weigh Heavily In Favor Of Enjoining The
July 6 Directive ..................................................................................................................43 Conclusion .....................................................................................................................................45
iii

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 4 of 53

TABLE OF AUTHORITIES

Cases

Page

Am. Med. Ass’n v. Reno, 57 F.3d 1129 (D.C. Cir. 1995)........................................................................................... 26

Am. Mining Congress v. Mine Safety & Health Admin., 995 F.2d 1106 (D.C. Cir. 1993)......................................................................................... 28
Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227 (D.C. Cir. 2008)........................................................................................... 26
Asociacion de Educacion Privada de Puerto Rico, Inc. v. Garcia-Padilla, 490 F.3d 1(1st Cir. 2007) .................................................................................................. 36
Autor v. Pritzker, 740 F.3d 176 (D.C. Cir. 2014)........................................................................................... 35

Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34 (D.D.C. 2018) .................................................................................... 16
Board of Regents of State Colleges v. Roth, 408 U.S. 564 (1972).......................................................................................................... 30

Boddie v. Connecticut, 401 U.S. 371 (1971).......................................................................................................... 29
Brendsel v. Office of Federal Housing Enterprise Oversight, 339 F. Supp. 2d 52 (D.D.C. 2004) .................................................................................... 42
Butera v. District of Columbia, 235 F.3d 637 (D.C. Cir. 2001)........................................................................................... 31

Cal. Democratic Party v. Jones, 530 U.S. 567 (2000).......................................................................................................... 37

Chamber of Commerce of the United States v. SEC, 443 F.3d 890 (D.C. Cir. 2006)........................................................................................... 27
City & Cty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) ........................................................................................... 43
Comm. of 100 on Fed. City v. Foxx, 87 F. Supp. 3d 191 (D.D.C. 2015) .................................................................................... 16

iv

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 5 of 53
Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525 (D.C. Cir. 1982)........................................................................................... 27
Continental Training Svcs., Inc. v. Cavazos, 893 F.2d 877 (7th Cir. 1990) ............................................................................................. 31
Davis v. District of Columbia, 158 F.3d 1342 (D.C. Cir. 1998)......................................................................................... 38
Dep’t of Commerce v. New York, 139 S. Ct. 2551 (2019)...................................................................................................... 21
*Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891 (2020).............................................................................. 18, 20, 21, 24, 25
Dolan v. City of Tigard, 512 U.S. 374 (1994).......................................................................................................... 36
Doran v. Salem Inn, Inc., 422 U.S. 922 (1975).......................................................................................................... 41
E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974 (N.D. Cal. 2019) .............................................................................. 43
*Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117 (2016) .................................................................................... 17, 18, 19, 24
FCC v. Fox Television Stations, Inc., 567 U.S. 239 (2012).......................................................................................................... 33
Fuentes v. Shevin, 407 U.S. 67 (1972)............................................................................................................ 29
Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015)............................................................................................ 16
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013...................................................................................... 38, 43
Goss v. Lopez, 419 U.S. 565 ..................................................................................................................... 30
Gray Panthers v. Schweiker, 652 F.2d 146 (D.C. Cir. 1980)..................................................................................... 30, 31
Home Box Office, Inc. v. FCC, 567 F.2d 9 (D.C. Cir. 1977)............................................................................................... 26
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Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 6 of 53
Int’l Long Term Care. v. Shalala, 947 F. Supp. 15 (D.D.C. 1996) ......................................................................................... 41
J.E.C.M. by & Through His Next Friend Saravia v. Lloyd, 352 F. Supp. 3d 559 (E.D. Va. 2018) ................................................................................ 25
Karem v. Trump, 960 F.3d 656 (D.C. Cir. 2020)............................................................................... 33, 35, 42
Keyishian v. Board of Regents, 385 U.S. 589 (1967).............................................................................................. 31, 31, 36
Kirwa v. United States Dep’t of Def., 285 F. Supp. 3d 21 (D.D.C. 2017) .................................................................................... 41
Klayman v. Obama, 957 F. Supp. 2d 1 (D.D.C. 2013) ...................................................................................... 43
Logan v. Zimmerman Brush Co., 455 U.S. 422 (1982).......................................................................................................... 30
Mathews v. Eldridge, 424 U.S. 319 (1976).................................................................................................... 29, 32
Michigan v. EPA, 135 S. Ct. 2699 (2015)...................................................................................................... 23
Morrissey v. Brewer, 408 U.S. 471 (1972).......................................................................................................... 29
N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490 (1979).......................................................................................................... 21
Nat’l Ass’n for the Advancement of Colored People v. Trump, 298 F. Supp. 3d 209 (D.D.C. 2018) ............................................................................ 18, 24
Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102 (D.C. Cir. 2019)............................................................................. 18, 19, 24
Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365 (2018)................................................................................................ 34, 37
Omnipoint Corp. v. F.C.C., 78 F.3d 620 (D.C. Cir. 1996)............................................................................................. 28
Petties v. District of Columbia, 881 F. Supp. 63, 68 (D.D.C. 1995) ................................................................................... 41
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Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 7 of 53
Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634 (D.C. Cir. 2020)........................................................................................... 18
Propert v. District of Columbia, 948 F.2d 1327.............................................................................................................. 30, 31
Public Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209 (D.C. Cir. 2004)......................................................................................... 19
R.I.L.-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015) ............................................................................ 43
*Regents of the University of California v. Bakke, 438 U.S. 265 (1978).............................................................................................. 31, 31, 36
Roberts v. U.S. Jaycees, 468 U.S. 609 (1984).......................................................................................................... 37
Simms v. District of Columbia, 872 F. Supp. 2d 90 (D.D.C. 2012) .................................................................................... 32
Soundboard Ass’n v. FTC, 254 F. Supp. 3d 7, (D.D.C. 2017) ..................................................................................... 16
*Sweezy v. New Hampshire, 354 U.S. 234 (1957).............................................................................................. 31, 31, 36
Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015)................................................................................. 43
TD Int’l, LLC v. Flesichmann, 639 F. Supp. 2d 46 (D.D.C. 2009) .................................................................................... 41
Tri Cnty. Indus., Inc. v. District of Columbia, 104 F.3d 455 (D.C. Cir. 1997)........................................................................................... 31
United States v. Bolton, No. 20 Civ. 1580 (RCL), 2020 WL 3401940 (D.D.C. June 20, 2020) ............................. 17
United States v. Cotton, 760 F. Supp. 116 (D.D.C. 2011)........................................................................................ 28
Washington v. Trump, 847 F.3d 1151 (9th Cir. 2017) ........................................................................................... 39
Wise v. United States, 128 F. Supp. 3d 311 (D.D.C. 2015) .................................................................................. 38
vii

Case 1:20-cv-01873 Document 9-1 Filed 07/13/20 Page 8 of 53 Statutes 5 U.S.C. § 551............................................................................................................................... 28 5 U.S.C. § 553......................................................................................................................... 26, 28 8 U.S.C. § 1182............................................................................................................................. 34 Rules Fed. R. Civ. P. 65........................................................................................................................... 16 Other Authorities Executive Office of the President, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), 85 Fed. Reg. 15,337 ............................................................................................................ 5 U.S. Const. amend. V.................................................................................................................... 29
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INTRODUCTION Plaintiff Johns Hopkins University respectfully seeks a temporary restraining order followed by a preliminary injunction in order to protect its programs and students against imminent irreparable harm, particularly from a looming July 15, 2020 deadline that threatens visa revocation and expulsion en masse of international students studying in the United States, absent a return to in-person classes.1 Specifically, Johns Hopkins requests that the Court suspend the effectiveness of a new directive issued on July 6, 2020—without notice and comment—that reverses a rule for visa holders that Defendants previously stated would remain “in effect for the duration of the [COVID-19] emergency.” Since March, Johns Hopkins and its many international students had been operating under and relying upon the guidance previously issued by U.S. Immigration and Customs Enforcement (“ICE”), which permitted international students on F-1 visas to safely pursue remote learning throughout the pandemic. Relying on this guidance, consultations with public health and other experts, and real-time data drawn from its preeminent Coronavirus Resource Center (which aggregates data from all 3,141 counties in the United States and more than 188 countries worldwide), Johns Hopkins developed a comprehensive and nuanced re-opening plan for all of its students and programs. But these carefully crafted plans, which included both remote and hybrid in-person learning, were upended on July 6 when ICE suddenly announced a 1 Consistent with the exigencies noted herein, Johns Hopkins filed its complaint requesting a temporary restraining order and preliminary injunction shortly before 4 pm Eastern time this past Friday, July 10. Shortly thereafter, the undersigned counsel alerted relevant Justice Department attorneys for the United States—including one who is defending against a parallel challenge that Harvard and MIT have filed in U.S. District Court for the District of Massachusetts and who acknowledged receipt—to both the Complaint and the fact that the instant papers seeking a temporary restraining order and preliminary injunction would be filed this morning. Declaration of Derek L. Shaffer ¶¶ 2–6 (July 13, 2020). Under the schedule operative in Massachusetts, the government will be responding there today and a TRO hearing will be held tomorrow afternoon at 3pm Eastern. Id., Ex. 4, at 3, 10.
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seismic change to its visa policy without offering any notice or opportunity for comment whatsoever.
Although the COVID-19 pandemic has been spreading at increasing rates since the President’s March 13, 2020 declaration of a national emergency, ICE inexplicably decrees that international students will lose their F-1 visas unless they and their universities can truthfully certify, under penalty of perjury, that their classes will involve an in-person component and they can then abide by that certification throughout the coming semester. If a university will conduct any of its programs exclusively online, it must so submit to ICE by July 15 (this Wednesday), merely nine days after ICE issued its directive. Alternatively, if a university intends to use a hybrid model combining in-person and online classes, it must so submit to ICE by August 1. And, if a university wants to try to preserve F-1 visa eligibility, then it and all of its international students must further submit I-20 forms by August 4 certifying, alongside the university, that they will be complying with ICE’s guidance, including the requirement that they continue physically attending classes throughout the coming semester, irrespective of any health and safety concerns in place on August 4 or that may arise throughout the semester.
The upshot throws higher education into turmoil, puts universities and students in an impossible (and dangerous) position, and disenfranchises countless international students who enrich and enliven the campuses they call home. Defendants have put universities and their students to an impossible Hobson’s choice: lose numerous students who bring immense benefits to the university community or take steps to retain those students through a rigid, unvarying commitment to in-person classes, even to the extent those steps contradict the judgments schools would otherwise make about how best to educate their students while protecting the health of their broader communities. ICE’s Directive visits numerous types of
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irreparable harm upon international students, as attested to in accompanying declarations, including by separating them from their families here; wasting the time and money they have sunk into their degrees; and exposing them to the risk of COVID-19 without regard for preexisting conditions and other health indicators. Moreover, by targeting international students for expulsion, Defendants’ July 6 Directive jeopardizes the country’s longstanding commitment to harnessing the ideas, energies, and creativities of people from around the world. The United States’ role as a place where raw talent and ambition matter far more than one’s country of origin is one of its greatest strengths. Research universities like Johns Hopkins play an integral role in enhancing the country’s dynamism and competitiveness precisely because they attract and nurture great talent and ambition in students who span the globe.
The July 6 Directive should be invalidated because it is contrary to law, to reason, and to core American values. It is arbitrary and capricious in the extreme. It makes no sense. Far from expiring, the COVID-19 emergency that animated the March guidance has only worsened with record-shattering rates. Relatedly, ICE’s new directive is contrary to law insomuch as it defies Executive Orders that continue to recognize the national emergency still posed by COVID-19. As a procedural matter, ICE has violated both the Administrative Procedure Act and due process by promulgating such a momentous change without affording the slightest opportunity for notice or comment—or the coherence or clarity required to enable compliance. Last and not least, ICE is imposing an unconstitutional condition: universities cannot constitutionally be made to forfeit their academic freedom and control over pedagogy, to the point of compromising the physical safety and well-being of the students for whom they are responsible, as a condition of being eligible to admit international students. Whatever the government’s purported defenses may be, this suit is likely to succeed on its merits.
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There is no way to understand the policy under challenge without recognizing the political motivation behind it. As confirmed by the public statements by members of the Administration, including the President, that motivation is to force universities to reopen inperson classes, irrespective of university officials’ assessments of the public health risks and at the expense of international students. Unable to control universities’ decisionmaking directly, the Administration has instead put them in a coercive vise at the expense of international students and their institutions. In light of the impending harms caused by Defendants’ highly suspect action, we ask now simply that the Court press the pause button on ICE’s new directive while this litigation proceeds expeditiously.
BACKGROUND A. Johns Hopkins, The COVID-19 Pandemic, And The Government’s Response Founded in 1876, Johns Hopkins is one of the nation’s premier academic and research institutions. It has approximately 27,000 students and is comprised of nine academic divisions, 11 campuses, and more than 260 programs in the arts and music, humanities, social and natural sciences, engineering, international studies, education, business, and health professions. Compl. ¶ 33. Two hallmarks of Johns Hopkins are its focus on international studies and its unparalleled expertise in public health. Compl. ¶ 34. Johns Hopkins has taken on particular significance since the COVID-19 pandemic began. The school is the leading source of data regarding the pandemic, aggregating data from more than 188 countries or regions to track and model the fast-moving disease. Compl. ¶ 59. Johns Hopkins’ experts in global public health, infectious disease, and emergency preparedness have been at the forefront of the international response to COVID-19, and the Johns Hopkins University Coronavirus Resource Center has been extensively cited as the basis for government decisions and key reporting, including by Defendant Department of Homeland Security, the
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Centers for Disease Control and Prevention, the White House, the United Nations, various state and local governments, major journalistic publications, and Defendants themselves. Id. The statistics on the pandemic Johns Hopkins has published have been sobering: over 12.2 million people infected worldwide and more than half a million deaths attributable to COVID-19. Compl. ¶ 3. In recent days, according to the Johns Hopkins database, the United States has crossed the grim milestone of 3 million infections and over 133,000 deaths. Id.
The government has recognized the crisis posed by the COVID-19 pandemic. For example, on March 13, 2020, the President declared a national emergency in response to it. Executive Office of the President, Proclamation on Declaring a National Emergency Concerning the Novel Coronavirus Disease (COVID-19) Outbreak (Mar. 13, 2020), 85 Fed. Reg. 15,337. That followed a corresponding declaration from the Secretary of Health and Human Services, who determined on January 31, 2020 that, “as a result of confirmed cases of 2019 Novel Coronavirus . . . a public health emergency exists and has existed since January 27, 2020, nationwide.” Dep’t of Health and Human Servs., Determination that a Public Health Emergency Exists (Jan. 31, 2020), https://tinyurl.com/smjl72r.2 And in March 2020, Congress passed and the President signed the Coronavirus Aid, Relief, and Economic Security Act, a $2 trillion economic stimulus package “[t]o provide emergency assistance and health care response for individuals, families, and businesses affected by the 2020 coronavirus pandemic.” CARES Act, S. 3548, 116th Cong. (2020).
Efforts to contain the spread of this highly contagious disease have included broad shutdowns of society. On March 16, 2020, the CDC and members of the national Coronavirus
2 Unless otherwise noted, internal citations, quotation marks, and alterations have been removed from citations in this brief. Also, for ease of reference, we have shrunk lengthy website references using tinyURL.com.
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Task Force issued guidance advising individuals to adopt far-reaching physical distancing measures by, for example, working from home; dispensing with discretionary travel, shopping trips, and gatherings of more than 10 people; and avoiding bars, restaurants, and food courts. See The President’s Coronavirus Guidelines for America, coronavirus.gov, https://tinyurl.com/v9kngde (last visited July 13, 2020).
Following this advice, many jurisdictions, including Maryland and the District of Columbia, recognized the need to take dramatic steps to protect the health and safety of their residents from human-to-human and surface-to-human spread of COVID-19. Compl. ¶¶ 4, 44. Among other things, they issued orders suspending or severely curtailing operations of nonessential businesses, schools, and other locations where individuals congregate. Id.
Notwithstanding these mitigation measures, COVID-19 cases continue to rise nationwide. The current regulatory guidance nationwide, including in Maryland and the District of Columbia, reflects a general policy of continued caution, and a particular concern with indoor gatherings. Compl. ¶ 45. Notably, states that have relaxed physical distancing measures, including by allowing indoor gatherings and the opening of locations where individuals congregate—such as Texas, Arizona, California, and Florida—provide a cautionary tale. Id. Such states are now seeing renewed surges and record-setting numbers of COVID-19 cases, hospitalizations, and reduced but continuing deaths. Id.
In the midst of the world’s response to COVID-19 and on the same day the President declared a national emergency, the Student and Exchange Visitor Program (“SEVP”), a division of ICE, issued guidance concerning certain nonimmigrant student visas, known as F-1 visas (the “March 13 Guidance”). Shaffer Decl., Ex. 2. In its March 13 Guidance, ICE recognized the pandemic and responded to “inquiries concerning the proper status” of international students in
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the United States on academic visas “who may have [to] face slightly different scenarios related to emergency procedures implemented by SEVP-certified learning institutions.” Id.
As relevant here, the March 13 Guidance addressed the status of students attending a school that “temporarily stops in-person classes but implements online or alternate learning procedures.” Id. Such students, the Guidance explained, could “participate in online or other alternate learning procedures and remain in active status” with SEVP. Id. Accordingly, students could participate in remote learning implemented as a result of the pandemic—either in the United States or abroad—while retaining their visa status. Id. The March 13 Guidance indicated that it was a “temporary provision” that would remain “in effect for the duration of the emergency.” Id. (emphasis added).
B. Johns Hopkins’ Preparation For The Fall 2020 Semester Since March 2020, Johns Hopkins has engaged dozens of formal and informal committees and groups to inform its response to the pandemic, including a Health Advisory Group comprised of expert Johns Hopkins faculty who advise the university’s senior leadership on COVID-19 issues and ways to continue safely carrying out Johns Hopkins’ academic mission. Declaration of Sunil Kumar ¶ 8 (July 12, 2020); Declaration of Stephen Gange Decl. ¶ 6 (July 12, 2020); Compl. ¶ 56. Senior university leadership has also been conferring weekly, and at times daily, to ensure that the various schools within Johns Hopkins are able to continue providing their high-quality education and research in a remote environment and consistent with public health guidance. Kumar Decl. ¶ 8; Gange Decl. ¶ 6; Compl. ¶ 56. On May 5, 2020, the university launched a planning task force, which included six primary work groups—the Research Work Group, Academic Programs Work Group, Student Life Work Group, Health & Safety Work Group, Cross-Cutting Work Groups, and Advisory Groups—composed of 23 separate interdisciplinary teams from across the university, including faculty, staff, and students.
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Gange Decl. ¶ 7; Compl. ¶ 57. Over the next eight weeks, each work group evaluated and documented options for a return to campus and provided the university’s deans with broad outlines of how campus operations might be conducted safely so that each school, department, and program could in turn develop detailed plans cued to its individual needs and circumstances. Gange Decl. ¶ 7; Compl. ¶ 57. “In formulating, adopting, and implementing plans for the fall 2020 semester, Johns Hopkins relied on ICE’s assurance that the March 13 Guidance would continue so long as the COVID-19 crisis remained in effect.” Kumar Decl. ¶ 14; see also Gange Decl. ¶ 15; Compl. ¶ 55.
Flexibility and data-driven responsiveness have been the hallmarks of Johns Hopkins’ COVID-19 response. Kumar Decl. ¶ 9. Based in part on the university’s status as the world’s foremost data source regarding the COVID-19 pandemic, Johns Hopkins benefits from up-tothe-minute, world-leading expertise and data regarding the pandemic. Id. Johns Hopkins can thus make real-time decisions based on the best information available about the disease and its spread. Id. Johns Hopkins has committed to making every effort to provide high-quality instruction as it normally would, consistent with the precautions appropriate at any given time. Id. In line with this approach, individual Johns Hopkins academic divisions have adopted varying plans for the fall 2020 semester. Kumar Decl. ¶ 11. For example, the Carey Business School has determined that, so long as it is permissible to do so, students taking in-person courses in the fall will spend part of their time in the classroom with small groups of students and part of their time participating with their classes remotely, with discussion groups and projects conducted online depending on the specifics of the course. Id. By contrast, the Bloomberg School of Public Health has contemplated, though not formally adopted, a plan in which there would be no face-to-face course work for the first and second terms of the 2020–21 academic
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year. Compl. ¶ 60; Declaration of Ellen MacKenzie ¶ 5. Put simply, Johns Hopkins believes it should be employing a nuanced, fluid approach that accounts for changing conditions on the ground and balances pursuit of its academic mission with the health and safety of the Johns Hopkins community. Kumar Decl. ¶ 10; Gange Decl. ¶ 10 (July 12, 2020). This would translate to different approaches, for different programs, at different stages of the semester.
C. The July 6 Directive On July 6, 2020, without employing notice-and-comment rulemaking or otherwise warning that it would be revising its policy, ICE issued the July 6 Directive. See Shaffer Decl., Ex. 1. Under the Directive, “[n]onimmigrant F-1 . . . students attending schools operating entirely online may not take a full online course load and remain in the United States.” Id. Instead, “[a]ctive students currently in the United States enrolled in such programs must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status. If not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.” Id. (emphasis added). As to the universities, the July 6 Directive required that they (1) decide, by July 15, within nine days, whether any academic program will proceed only by remote means and, if so, disclose those programs to ICE; (2) update, by August 1, the operational plans on file with ICE for each academic program and determine whether the program will consist of solely in-person classes, delayed or shortened sessions, or a hybrid of in-person and remote classes; (3) update, on an ongoing basis, the operational plans on file with ICE, within 10 days of any change in the program’s “operational posture”; and (4) update and reissue, by August 4, the I-20 forms for every single student who holds an F-1 visa. Id. The July 6 Directive was a shock. See, e.g., Kumar Decl. ¶ 15. Coming in the midst of the worst period of COVID-19 infection on record, see Compl. ¶ 78, the July 6 Directive
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appears to rely on the unstated (and flatly inaccurate) premise that conditions in the United States have improved since the March 13 Guidance so as to justify rolling it back. For example, the July 6 Directive describes the rule laid out in the March 13 Guidance merely as allowances made “during the height of the [COVID-19] crisis.” Shaffer Decl., Ex. 1. But March was not the “height of the” pandemic—far from it. Nationwide, from March 15 to March 20, the number of reported cases of COVID-19 increased by fewer than 5,000. Coronavirus in the U.S.: Latest Map and Case Count, N.Y. Times, https://tinyurl.com/t9j9fdw (last visited July 13, 2020); see also Coronavirus Resource Center, Johns Hopkins University & Medicine, https://coronavirus.jhu.edu/map.html (last visited July 13, 2020). On July 6 alone, however, the reported increase in cases was 47,300, and on July 10, the date of the Complaint, the number of reported cases increased by 68,241. Id. By any measure, the COVID-19 pandemic in the United States is raging.
Consistent with these figures, on July 8, the CDC stated the obvious truth: that the risk from COVID-19 increases with the level of in-person activity. Shaffer Decl., Ex. 3. Identifying full-sized, in-person classes at institutions of higher learning as the “Highest Risk,” the CDC noted that:
IHEs [institutions of higher education] vary considerably in geographic location, size, and structure. As such, IHE officials can determine, in collaboration with state and local health officials, whether and how to implement these considerations while adjusting to meet the unique needs and circumstances of the IHE and local community. Implementation should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community. Id. at 6 (emphasis added). Meanwhile, the nation remains under the President’s declaration of a state of emergency. Compl. ¶ 111. That emergency is what drove the issuance of the March 13 Guidance and what
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would, under its terms, remain ICE’s lodestar for any future guidance such that, once the emergency ended, only then might the March 13 Guidance end too. Shaffer Decl., Ex. 2 (provisions will remain “in effect for the duration of the emergency”). Notably, however, the July 6 Directive does not purport to rescind, reconsider, or otherwise amend the March 13 announcement. It simply proceeds on the apparent, yet unstated, premise that the national emergency that prompted the March 13 Guidance has passed. Such reasoning (if it can be called that) is fanciful as well as dangerous.
Other evidence suggests the real motivation for the Directive is the Administration’s desire to force schools and universities to reopen, whatever the consequences. On July 6, the day ICE issued the Directive, the President insisted on social media that schools needed to reopen.3 The next day, he reiterated his insistence at a White House event, promising to pressure institutions to reopen.4 Similarly, the Acting Deputy Secretary of Homeland Security explained on July 7, 2020 that the Directive issued the day before will “encourage schools to reopen.” John Bowden, Cuccinelli says rule forcing international students to return home will ‘encourage schools to re-open’, The Hill (July 7, 2020), https://tinyurl.com/yadcusmt.
As transparent as the motivation for ICE’s action may be, the terms of the Directive remain opaque. For example, the Directive requires Johns Hopkins to certify that international students are not taking an “entirely online course load,” without illuminating what qualifies as in-person instruction sufficient to make a student’s course load not “entirely online.” See Shaffer Decl., Ex. 1. Further, certain programs involve in-person components in labs 3 “SCHOOLS MUST OPEN IN THE FALL!!!” Donald J. Trump (@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM), https://tinyurl.com/y7v2ldgm. 4 The President said, “[W]e’re very much going to put pressure on governors and everybody else to open the schools, to get them open. . . . [W]e’re going to be putting a lot of pressure on: Open your schools in the fall.” See Peter Baker & Erica L. Green, Trump Leans on Schools to Reopen as Virus Continues Its Spread, N.Y. Times (July 7, 2020), https://tinyurl.com/y9pwq9ha.
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accompanied by instruction that will proceed online. Kumar Decl. ¶ 17. The university has committed to making every effort to ensure these labs proceed in person if conditions permit, but the July 6 Directive does not specify whether such labs would qualify for the hybrid modality, notwithstanding that “the core educational component of the course” may well be the lab. Id.
D. The Impact Of ICE’s Change In Policy What is clear, however, is that the July 6 Directive has plunged Johns Hopkins and the rest of the nation’s universities into disarray. The Directive forces Johns Hopkins to choose between, on the one hand, preserving the visa eligibility of its international students, and on the other hand, continuing to make real-time, data- and public health-driven decisions about the safest way to provide instruction and promote the academic mission of the university. Under the Directive, international students whose course work is, or at any time becomes, “entirely online” would now lose their F-1 visa status and be required to “depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status[, and i]f not, they may face immigration consequences including, but not limited to, the initiation of removal proceedings.” Shaffer Decl., Ex. 1. So if, as occurred during the spring semester, Johns Hopkins (or local, state, or federal authorities) determines that conditions on the ground require suspending in-person courses, and the university converts all courses to remote-learning alternatives, all Johns Hopkins students with F-1 visas will lose their visas and be required to leave the country. The Directive thus forces Johns Hopkins to choose between “forsak[ing] its institutional duty and academic imperatives by taking steps that would diminish the participation of international students in [its] academic programs” and “abdicat[ing its] responsibility to act in the best interest of the safety and well-being of [its] community.” Kumar Decl. ¶ 25. For Johns Hopkins, losing its international students from campus would be calamitous. Kumar Decl. ¶ 19. The university depends on the presence and diversity of its international
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students. Id. The curricula at the university’s various schools draw frequently on the perspectives of international students, and the absence of such expertise and perspective would greatly diminish the education for the university and all its students. Id. Forcing all Johns Hopkins’ students with F-1 visas to desert its campuses would deprive the university of their innovative research contributions, stunt the development of scholarship, and undermine Johns Hopkins’ mission of bringing the benefits of discovery to the world. Id.; Compl. ¶ 84. “It would so alter the nature of Johns Hopkins and most of [its] academic programs as to render them virtually unrecognizable.” Kumar Decl. ¶ 19.
Beyond the fundamental encroachment on its academic freedom, the July 6 Directive poses additional immediate harms to Johns Hopkins. It is impracticable for the university to comply with the July 15 deadline for informing ICE whether any programs will proceed only through remote instruction and to even know what that means in concrete application. Kumar Decl. ¶ 17. A number of academic divisions have not yet determined whether they will offer inperson instruction in addition to remote programs. Id.; MacKenzie Decl. ¶ 15. That decision depends not only on COVID-19 trends, but on the unique pedagogical requirements of each program. Moreover, all divisions and programs have explicitly reserved the right and ability to move all courses fully online at any point during the semester depending on how the circumstances develop on the ground. Kumar Decl. ¶ 17. Balancing the interests at play is agonizingly difficult, and for many Johns Hopkins programs, it simply is not possible to complete that process and make a decision by July 15. Id. Johns Hopkins cannot in good conscience, and consistent with the utmost seriousness required of submissions to the government, commit definitively to one or another instructional modality across all of its programs on the nine-day deadline abruptly imposed by the July 6 Directive. Id.
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The August 1 and 4 deadlines are similarly problematic. The former requires the same programmatic determinations and legal interpretations that the July 15 deadline does. See supra 9, 13. The latter requires Johns Hopkins to update and reissue the I-20 forms for every single student who holds an F-1 visa. That is a time-consuming process. Kumar Decl. ¶ 16; Gange Decl. ¶ 20(e); Compl. ¶¶ 73–74. It requires gathering information from the student, including detailed financial information, as well as from university databases. Kumar Decl. ¶ 16; Gange Decl. ¶ 20(e); Compl. ¶¶ 73–74. It can take an experienced administrator familiar with the process up to 30 minutes to update and reissue a Form I-20. Gange Decl. ¶ 20(e). With approximately 5,000 students studying at Johns Hopkins on F-1 visas, that translates to approximately 2,500 hours of work. Id. Johns Hopkins’ Office of International Services lacks the resources to complete this work consistent with its other obligations in the time allotted by the July 6 Directive. Id. ¶¶ 20(e)–(f); Kumar Decl. ¶ 16; Compl. ¶ 125. And even if the university were staffed and equipped to gather and update students’ information in the forms, the July 6 Directive’s terms are so confusing and unclear to administrators and students that they cannot plan for class registration; without knowing a student’s course load, however, the university cannot possibly certify that “the student is not taking an entirely online course load,” as the Directive requires. Kumar Decl. ¶ 16; Compl. ¶¶ 73–74. Notably, I-20 forms must be separately signed by both the university and student, under penalty of perjury, in order to certify compliance, which is subject to auditing and severe sanctions for noncompliance. Kumar Decl. ¶ 16; Compl. ¶¶ 73–74.
The problems the Directive poses for the university and its international students are insoluble and devastating. Until now, Johns Hopkins’ international students have been leading the charge on innovative, life-saving research (including COVID-19 research) that would come
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to an abrupt halt if they were precluded from starting the fall 2020 semester or abruptly forced to leave campus midway through because conditions require suspension of in-person coursework. Kumar Decl. ¶ 20. Losing their visa status would also deprive these students of associated work permits (known as “Optional Practical Training” or “OPT”) that allow them to obtain employment in the United States for a period of time after they obtain their degrees. Id. Still other students would face deplorable conditions in their home countries, whether from COVID19, civil war, unreliable (or no) internet connections, repressive regimes that do not permit studying sensitive academic materials, or other factors. Id. Sudden expulsion from the United States would also visit a range of injuries on international students, including but not limited to the price of last-minute transoceanic flights; lost security deposits and broken lease fees; ongoing student loan obligations for educations they cannot access; the disruption of their families’ lives here; and risks of contracting COVID-19 while traveling amidst a raging pandemic. Id.; Compl
These harms to students flow to Johns Hopkins too. Many international students will opt for an alternative to Johns Hopkins if forced to choose between obtaining a Johns Hopkins degree via remote instruction from abroad, or instead enrolling in a program that permits them to live in the United States, a program in another country, or no program at all. Kumar Decl., ¶ 21. For many programs, particularly advanced-degree programs that attract a substantial proportion of international students, in-class instruction may be far less important to the academic experience than the research, laboratory work, internships, and networking that occur on and around campus. Id. Separately, in some countries—for example, China and India—degrees from international institutions earned via remote instruction may not be recognized, causing students to lose the value of their credits already earned. In addition, some graduates may be ineligible for some categories of jobs in those countries. Id. The upshot is that Johns Hopkins
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will lose students, thereby not only reducing tuition payments to the university but also requiring additional cash outlays for teaching assistants, residential advisors, laboratory assistants, and similar positions that these students fill. Id. The Carey Business School, for example, has a large international student body and faces serious financial stress from the forced withdrawals and deferred enrollments that now loom. Id. Similarly, the university stands to lose money it has paid to secure hotel rooms (subsidized by university funds and under long-term leases) that would be wasted if students with F-1 visas are forced to leave campus. Id.
LEGAL STANDARDS A movant seeking either a temporary restraining order or a preliminary injunction must establish (1) that it is likely to succeed on the merits, (2) that it is likely to suffer irreparable harm in the absence of preliminary relief, (3) that the balance of equities tips in its favor, and (4) that an injunction is in the public interest. Glossip v. Gross, 135 S. Ct. 2726, 2736 (2015); Bean LLC v. John Doe Bank, 291 F. Supp. 3d 34, 41 (D.D.C. 2018) (same standard for temporary restraining order and a preliminary injunction). Under Federal Rule of Civil Procedure 65, the Court may issue a temporary restraining order for up to 14 days without notice to the adverse party and may issue a preliminary injunction on notice to the adverse party. A plaintiff must show it faces irreparable injury before a temporary restraining order or preliminary injunction issues. See Comm. of 100 on Fed. City v. Foxx, 87 F. Supp. 3d 191, 202 (D.D.C. 2015). Case law is divided on whether a plaintiff must show both a likelihood of success and irreparable harm in order for a temporary injunction to issue, or whether a strong showing on one factor can compensate for a weaker showing on another (the “sliding scale” approach). See, e.g., Soundboard Ass’n v. FTC, 254 F. Supp. 3d 7, 9–10 (D.D.C. 2017) (“Some judges of the D.C. Circuit have expressed the view that . . . a movant cannot obtain an injunction without showing both a likelihood of success and a likelihood of irreparable harm.”). The D.C. Circuit
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“has expressly declined to address the viability of the ‘sliding scale’ approach.” United States v. Bolton, No. 20 Civ. 1580 (RCL), 2020 WL 3401940, at *3 (D.D.C. June 20, 2020).
But any question about the precise framework should not matter here. The factors together provide powerful warrant and each one favors the requested relief. The July 6 Directive is likely to fail judicial review on the merits. The irreparable harm faced by Johns Hopkins is both imminent and irremediable. Ultimate vindication will provide no succor—for the university and countless innocent students and faculty whose lives and educational missions will be put at risk—unless a temporary injunction issues now. And the balance of equities and public interest overwhelmingly support the requested injunctive relief.
ARGUMENT I. JOHNS HOPKINS IS LIKELY TO PREVAIL ON THE MERITS
Johns Hopkins is likely to prevail on at least one of five claims: (1) the July 6 Directive is arbitrary and capricious under the Administrative Procedure Act (“APA”); (2) it is contrary to law under the APA; (3) it violates the procedural requirements of the APA; (4) it violates the Due Process Clause of the Fifth Amendment; and (5) it imposes unconstitutional conditions that especially offend the First Amendment and the academic freedom protected thereunder.
A. The July 6 Directive Is Arbitrary And Capricious The government’s inexplicable decision to herd students back into classrooms en masse, lest they face expulsion from the country, is incapable of withstanding this Court’s review under the APA’s arbitrary-and-capricious standard. “One of the basic procedural requirements of administrative rulemaking is that an agency must give adequate reasons for its decisions.” Encino Motorcars, LLC v. Navarro, 136 S. Ct. 2117, 2125 (2016). That requires, at a minimum, “a satisfactory explanation for its action including a rational connection between the facts found and the choice made.” Id. Where an agency fails to consider an “important aspect
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of the problem,” that “omission alone renders [the agency’s] decision arbitrary and capricious.” Dep’t of Homeland Sec. v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1913 (2020). And the agency may not articulate the requisite rational connection after the fact. Because a “reviewing court must judge the propriety of agency action solely by the grounds invoked by the agency, post hoc explanations that the agency did not articulate when it acted are insufficient.” Nat’l Ass’n for the Advancement of Colored People v. Trump, 298 F. Supp. 3d 209, 237 (D.D.C. 2018).
Agency action that, as here, alters existing policy must overcome additional hurdles. The agency must “address past practice and formal policies regarding” the issue and “supply a reasoned analysis” for the change. Physicians for Soc. Responsibility v. Wheeler, 956 F.3d 634, 647 (D.C. Cir. 2020). Merely acknowledging the change in course is insufficient. Id. The agency must address the reliance interests its prior policy created and provide “a reasoned explanation” “for disregarding facts and circumstances that underlay or were engendered by the prior policy.” Encino Motorcars, 136 S. Ct. at 2125–26. “An agency cannot ignore its prior factual findings that contradict its new policy nor ignore reliance interests.” Nat’l Lifeline Ass’n v. FCC, 921 F.3d 1102, 1111 (D.C. Cir. 2019). An “unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Encino Motorcars, 136 S. Ct. at 2126.
1. The government failed to articulate any rationale (let alone a plausible one) for the July 6 Directive
The July 6 Directive provides no comprehensible basis for ICE’s action. That alone should doom it. Encino Motorcars, 136 S. Ct. at 2126 (“unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice”); Nat’l Lifeline Ass’n, 921 F.3d at 1111 (“An agency cannot ignore its prior factual findings that contradict its new policy nor ignore reliance interests.”). Here is the extent
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of ICE’s purported justification: “as many institutions across the country reopen, there is a concordant need to resume the carefully balanced protections implemented by federal regulations.” Shaffer Decl., Ex. 1. That statement ignores the reality that the COVID-19 pandemic not only persists, but is worsening.
On its face, the statement that “many institutions across the country [are] reopen[ing]” is utterly vapid. The Directive provides no indication as to what it means by “institutions,” how “many” are reopening, or what it means to “reopen.” Even assuming “institutions” refers to educational institutions, the Directive is silent about what it means by “many” or how it arrived at a tally. Nor does the Directive illuminate what it means to “reopen”—and whether providing solely in-person instruction counts. For example, it is unclear under this standard whether Johns Hopkins is “reopening” or not. To begin with, Johns Hopkins never closed—rather, it, like many universities, moved to fully online learning. The Directive appears to rely on a false dichotomy between “open” and “closed,” when the reality is that it exists along a spectrum.
Because ICE’s stated premise is too cryptic to afford reasoned basis for anything, it cannot support ICE’s anomalous conclusion that “there is a concordant need to” change its policy regarding the SEVP. Where the proffered basis for agency action is indecipherable, it cannot withstand review under the APA. Encino Motorcars, 136 S. Ct. at 2125.
If anything, the Directive depends upon a self-fulfilling prophecy. As described above at 11, the thrust of the July 6 Directive is to force institutions to “reopen,” whatever that may mean. But an agency cannot justify regulatory action by citing circumstances of its own invention. Cf. Public Citizen v. Fed. Motor Carrier Safety Admin., 374 F.3d 1209, 1219 (D.C. Cir. 2004) (agency impermissibly relied on circular reasoning when it “assume[d] away the exact effect that the agency attempted to use [] to justify” regulatory action).
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Finally, to the extent the instant decision rests on a judgment about the threat to public health that the COVID-19 pandemic currently poses, the APA required that ICE analyze the data and articulate a basis for its judgment. Here, ICE has not even purported to account for the status of the COVID-19 emergency that animated the March Guidance. Nor can ICE rationally deny that the COVID-19 emergency persists, as data incontestably demonstrate and the United States Government elsewhere acknowledges. See supra 10–11; see infra 25–26. At its core, therefore, the Directive is the quintessence of arbitrary and capricious agency action. See Regents of the Univ. of Cal., 140 S. Ct. at 1913 (failure to consider an “important aspect of the problem” renders agency’s “decision arbitrary and capricious”).
Lest there be any doubt, ICE’s unreasoned approach is irreconcilable with the CDC’s evidence-based guidance of only two days later. On July 8, the CDC explained that:
IHEs [institutions of higher education] vary considerably in geographic location, size, and structure. As such, IHE officials can determine, in collaboration with state and local health officials, whether and how to implement these considerations while adjusting to meet the unique needs and circumstances of the IHE and local community. Implementation should be guided by what is feasible, practical, acceptable, and tailored to the needs of each community. Shaffer Decl., Ex. 3, at 6 (emphasis added). In other words, the CDC is commending precisely the sort of flexible approach, “tailored to the needs of each community,” that Johns Hopkins has been successfully employing but that ICE has inexplicably foreclosed. At the end of the day, the only way to understand the Directive is as an outgrowth of the Administration’s desire to dictate to the nation’s schools and universities how to conduct their affairs. Notably, the Administration has acknowledged that ICE’s decision is designed to force universities to conduct in-person classes notwithstanding the considered judgments of university and public health officials that it may not be safe or educationally advisable to do so in certain
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circumstances. As discussed above, the same day ICE issued the Directive, the President insisted on social media, and reiterated the next day at a White House event, that schools must open. See supra 11. And the Acting Deputy Secretary of Homeland Security explained on July 7, 2020 that ICE’s Directive will “encourage schools to re-open.” See id.
Viewing “the evidence as a whole,” there is “a significant mismatch between the decision [ICE] made and the rationale [it] provided.” Dep’t of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019). Because it is impossible to understand ICE’s decision “in terms of” its stated rationale, it is invalid under the APA. Id. Even worse, however, there are strong indications that ICE’s Directive is being used as a device to trample on academic freedoms and prerogatives that are constitutionally protected by the First Amendment. See infra 35–37. In this light, the doctrine of constitutional avoidance provides all the more reason why the instant challenge is likely to succeed under the APA. See, e.g., N.L.R.B. v. Catholic Bishop of Chicago, 440 U.S. 490, 507 (1979) (courts should construe legislation so as to avoid having “to resolve difficult and sensitive [constitutional] questions”).
2. The July 6 Directive fails to consider important aspects of the problem Johns Hopkins is also likely to succeed on its claim that the July 6 Directive is arbitrary and capricious because the Directive “entirely fail[s] to consider . . . important aspect[s] of the problem.” Regents of the Univ. of Cal., 140 S. Ct. at 1913. First, the Directive gives no consideration to the havoc it will wreak on F-1 visa holders and educational institutions that are doing their level best to comply but, due to circumstances beyond their control, may be forced to switch from partially in-person to entirely remote courses during the coming semester. Johns Hopkins planned its fall semester with the benefit of extensive collaboration with the world’s leading doctors and epidemiologists, including those in the university’s Health Advisory Group, the entity charged with advising the university’s senior
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leadership on COVID-19 issues and ways to continue safely pursuing Johns Hopkins’ academic mission. Gange Decl. ¶¶ 7–8; Compl. ¶¶ 55–59. The resulting plan would enable certain programs to instruct students remotely in order to de-densify the campuses and minimize risk of spreading COVID-19, while others follow a hybrid model and all retain the flexibility to toggle between modalities as appropriate under the circumstances. Gange Decl. ¶ 9; Compl. ¶¶ 60–63.
The Directive frustrates all of this careful planning to no good end. If Johns Hopkins determines on October 15 that in-person classes are too risky to continue, its international students will lose their visas and be required to leave the country within a matter of days. Shaffer Decl., Ex. 1. Once this happens, those students cannot simply return to campus if the university resumes in-person instruction, say, a month later. When a student loses her F-1 visa, she must undertake anew an application process that is time-consuming under the best of circumstances (never mind those prevailing today). See, e.g., Department of Homeland Security, SEVIS Help Hub: Terminate a Student, https://tinyurl.com/y8ujrdon (“When an F-1/M1 SEVIS record is terminated, . . . Student loses all on- and/or off-campus employment authorization. . . . Student cannot re-enter the United States on the terminated SEVIS record. . . .”) (last visited July 13, 2020); U.S. Immigration & Customs Enforcement, Student and Exchange Visitor Program: Travel, https://www.ice.gov/sevis/travel (students must leave the United States to renew an F-1 visa) (last visited July 13, 2020). Beyond that, sudden loss of visa status will uproot lives, undermine ongoing research trials (including research into COVID19 and clinical trials), necessitate travel expenses, and tear apart campus communities. See Kumar Decl. ¶ 20; Compl. ¶ 82. Nothing in the July 6 Directive reflects any consideration of these appalling, unfair consequences.
Second, the Directive reflects no consideration of whether it is possible for programs to
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decide by July 15 if they will proceed only with remote-learning options. That decision hinges not only on COVID-19 trends, but on the unique pedagogical requirements of each program. Kumar Decl. ¶ 17. The already “agonizingly difficult” decision these university officials faced about their programming has been made “extraordinarily complex and extremely vexing.” Id. ¶¶ 17, 22. Certain academic divisions of Johns Hopkins cannot yet know one way or the other whether their curricula will involve only remote learning. Kumar Decl. ¶¶ 14, 22. The July 6 Directive takes no account of these problems, however, in setting the July 15 deadline for universities to make pivotal, vexing, binding decisions about their operational plans.
Third, the July 6 Directive takes no account of the crushing administrative burden it imposes. The Directive requires all universities, by August 4, 2020, to update and reissue the I20 forms for all students who hold F-1 visas—which, just in the case of Johns Hopkins, is approximately 5,000. Kumar Decl. ¶ 16; Gange Decl. ¶ 16. That process takes time. It requires gathering information from each student, including detailed financial information, as well as from university databases. Kumar Decl. ¶ 16; Compl. ¶ 125. Johns Hopkins, for instance, simply does not have the resources necessary to complete this work consistent with its other obligations in the time allotted under the July 6 Directive. Kumar Decl. ¶ 16; Gange Decl. ¶ 20(e)–(f).
ICE is required to “pay[] attention to the advantages and the disadvantages of [its] decisions.” Michigan v. EPA, 135 S. Ct. 2699, 2707 (2015). Its complete failure to do so here constitutes another reason why the July 6 Directive is unlawful.
3. The July 6 Directive fails to consider Johns Hopkins’ and its students’ reliance on ICE’s prior guidance
Defendants also failed to consider the reliance interests of universities. ICE is not permitted to “ignore its prior factual findings that contradict its new policy nor ignore reliance
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interests.” Nat’l Lifeline Association, 921 F.3d at 1111. In this case, the “unexplained inconsistency in agency policy is a reason for holding an interpretation to be an arbitrary and capricious change from agency practice.” Encino Motorcars, 136 S. Ct. at 2126.
As explained above at 7–9, Johns Hopkins alongside its fellow universities undertook a painstaking deliberative process to determine how its fall 2020 semester should proceed. See also Gange Decl. ¶¶ 7–8; Kumar Decl. ¶ 8, 9; Compl. ¶¶ 55–59. “In formulating, adopting, and implementing plans for the fall 2020 semester, Johns Hopkins relied on ICE’s assurance that the March 13 Guidance would continue so long as the COVID-19 crisis remained in effect.” Kumar Decl. ¶ 14. And because the university understood that international students would be permitted to retain their visas and stay in the United States if the university had to suspend all inperson instruction, as in the spring semester, dozens of university officials spent months devising standards and protocols for delivering flexible, tailored academic instruction amidst a global crisis unlike any in recent history. Gange Decl. ¶¶5, 10; Kumar Decl. ¶ 8. The July 6 Directive pulled the rug out from under these carefully laid plans without so much as acknowledging “serious reliance interests,” Encino Motorcars, 136 S. Ct. at 2126, let alone identifying countervailing factors sufficient to outweigh them.
The Supreme Court’s recent decision holding that the Administration violated the APA in its effort to end the Deferred Action for Childhood Arrivals program, or DACA, provides a useful comparison. In that case, the Court held that Defendant DHS’s rescission of DACA was arbitrary and capricious because (among other things), the agency failed to “assess whether there were reliance interests” on DACA, “determine whether they were significant, and weigh any such interests against competing policy concerns.” Regents of the Univ. of Cal., 140 S. Ct. at 1913–1915. DHS has made the same mistake here: the July 6 Directive fails to address in any
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way how universities and their students have relied on the March 13 Guidance, much less attempt to balance it against competing interests. “Making that difficult decision was the agency’s job, but the agency failed to do it.” Id. at 1914. Just as Defendants’ interference with immigrant children violated the APA, so too does its interference with international students and the universities they enrich.
B. The July 6 Directive Is “Otherwise Not In Accordance With Law” Not only is the July 6 Directive contrary to reason, it is contrary to law. Because the July 6 Directive “does not comport with governing statutes or regulations,” it is “not in accordance with law” and should “be set aside.” J.E.C.M. by & Through His Next Friend Saravia v. Lloyd, 352 F. Supp. 3d 559, 583 (E.D. Va. 2018). Specifically, the July 6 Directive contradicts both an Executive declaration and an agency determination. On March 13, the President found and proclaimed “that the COVID-19 outbreak in the United States constitutes a national emergency, beginning March 1, 2020.” See supra 5. The same day, ICE issued the March 13 Guidance, stating it would remain in effect for the “duration of the emergency” that the President had just declared. Shaffer Decl., Ex. 2. Months earlier, the Secretary of Health and Human Services determined that, “as a result of confirmed cases of 2019 Novel Coronavirus . . . a public health emergency exists and has existed since January 27, 2020, nationwide.” Dep’t Health and Human Servs., Determination That a Public Health Emergency Exists (Jan. 31, 2020), https://tinyurl.com/smjl72r. Even as members of the Administration suggest that the COVID-19 emergency has lessened or passed altogether, the legal declaration of the state of national emergency remains in full force and effect. Nor could it be otherwise in light of reality of the status of the pandemic in the United States. On March 13, there were 556 new reported cases in the United States; on July 10, when Johns Hopkins commenced this action, there were 68,241. In other words, the
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number of reported cases that arose throughout the entire day that the President declared that we are in a state of emergency now arise every 12 minutes.
With the July 6 Directive, however, ICE has done exactly what it indicated in the March 13 Guidance it would not do: it reversed the provisions of that Guidance even while the country remains gripped by precisely the same (or worse) emergency, as acknowledged elsewhere by the Executive Branch. Nor does it purport to rescind, reconsider, or otherwise amend the March 13 Guidance. The July 6 Directive simply proceeds on the topsy-turvy premise that the national emergency that prompted the March 13 Guidance has passed. That is contrary to law (and fact), and it violates the APA.
C. The Government Violated The APA By Failing To Provide Notice Or A Meaningful Opportunity For Comment On The July 6 Directive
The July 6 Directive is just as deficient procedurally as it is substantively. The APA requires a federal agency to provide adequate notice of any regulation it proposes adopting. 5 U.S.C. § 553. This notice “must include sufficient detail on [the regulation’s] content and basis in law and evidence to allow for meaningful and informed comment.” Am. Med. Ass’n v. Reno, 57 F.3d 1129, 1132 (D.C. Cir. 1995). The point of the notice is to enable “an exchange of views, information, and criticism between interested persons and the agency,” which can happen only if the agency “disclose[s] in detail the thinking that has animated the form of a proposed rule.” Home Box Office, Inc. v. FCC, 567 F.2d 9, 35 (D.C. Cir. 1977) (emphasis added). Among the information an agency must divulge are the facts on which its action is premised. Am. Radio Relay League, Inc. v. FCC, 524 F.3d 227, 236 (D.C. Cir. 2008). “By requiring the ‘most critical factual material’ used by the agency be subjected to informed comment, the APA provides a procedural device to ensure that agency regulations are tested through exposure to public comment, to afford affected parties an opportunity to present comment and evidence to
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support their positions, and thereby to enhance the quality of judicial review.” Chamber of Comm. of the United States v. SEC, 443 F.3d 890, 900 (D.C. Cir. 2006).
These notice requirements are essential to ensuring the accuracy and fairness of agency action. Absent sufficient identification of factual premises, interested parties cannot correct misperceptions that would lead the agency astray. See, e.g., Conn. Light & Power Co. v. Nuclear Regulatory Comm’n, 673 F.2d 525, 530 (D.C. Cir. 1982) (if notice “fails to provide an accurate picture of the reasoning that has led the agency to the proposed rule, interested parties will not be able to comment meaningfully upon the agency’s proposals. As a result, the agency may operate with a one-sided or mistaken picture of the issues at stake in a rule-making”).
ICE’s failure to provide any notice or opportunity to comment is improper. The July 6 Directive came from out of the blue, on the first business day after Independence Day, as university officials were finalizing their plans for the fall semester, weeks before waves of students would arrive on campus, and with only nine days before the first deadline for compliance. There is no plausible emergent circumstance requiring that ICE reverse itself so precipitously or demand compliance so quickly. Nor is there any emergent circumstance justifying recertification of thousands of I-20 forms or any other provision of the Directive. If anything, the operative premise of the July 6 Directive is that there is no emergency. There is no discernible reason—and certainly none expressed in the July 6 Directive—why ICE could not have provided at least a modicum of notice and comment before instituting the Directive.
ICE will presumably attempt to justify its actions by seeking to cloak the July 6 Directive under the guise of a “Temporary Final Rule,” see Shaffer Decl., Ex. 1, or as interpretive guidance, general statements of policy, or other action exempt from notice-and-comment requirements. But the Directive is a “rule” in every relevant sense under the APA. It is an
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“agency statement of general or particular applicability and future effect designed to implement, interpret, or prescribe law or policy.” 5 U.S.C. § 551(4). It imposes on Johns Hopkins and students holding F-1 visas the obligation to comply with its dictates—on accelerated, arbitrary timelines—or else face severe, immediate consequences for noncompliance. An interpretive rule cannot “confer benefits or ensure the performance of duties” where the basis is not existing law or agency action. Am. Mining Cong. v. Mine Safety & Health Admin., 995 F.2d 1106, 1112 (D.C. Cir. 1993). However it may be styled, the July 6 Directive is a rule—the violation of which will trigger expulsions en masse.
Nor does ICE have good cause for providing no notice, inviting no comment, and affording no process whatsoever. This is not an instance where notice and comment would have been “impracticable, unnecessary, or contrary to the public interest,” as the APA requires before exempting an agency from its prescribed process. See 5 U.S.C. § 553(b)(B). In rare cases where good cause may exist, it should be “narrowly construed and only reluctantly countenanced” and “must be supported by more than the bare need to have regulations.” United States v. Cotton, 760 F. Supp. 2d 116, 127–28 (D.D.C. 2011). Certainly the COVID-19 pandemic affords ICE no excuse. To the extent that the COVID-19 emergency persists, as the data indicate it most certainly does, ICE had no reason to depart from the March 13 Guidance, much less to do so in haste. To the extent ICE misperceives the pandemic as abating, that is the opposite of an emergency. In neither event does ICE have good cause for reversing itself without notice and comment. Indeed, assuming arguendo that ICE would assert good cause, its claimed good cause would not possibly extend so far as to justify dispensing even with the sort of abbreviated process that has, in rare cases, been judicially approved where genuine exigency presents itself. Cf. Omnipoint Corp. v. F.C.C., 78 F.3d 620, 629–31 (D.C. Cir. 1996) (approving
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FCC’s 7-day notice-and-comment period as comporting with the “urgent necessity for rapid administrative action under the circumstances”).
D. Both The July 6 Directive And The Process That Produced It, Violate The Due Process Clause
If Johns Hopkins’ likelihood of success were not clear enough under the APA, the constitutional concerns should dispel any doubt about whether the university is likely to succeed on the merits. The extraordinary unfairness and precipitousness of ICE’s reversal, combined with the way it imperils lives and educations, offend the Due Process Clause in distinct but related respects: The July 6 Guidance puts regulated entities in an impossible position without affording them prior notice or opportunity to be heard, and without them affording intelligible guidance on how they are meant to comply.
1. The government failed to provide notice and an opportunity to be heard Due process requires effective notice and a meaningful opportunity to be heard, but ICE has afforded neither. The Fifth Amendment guarantees that “no person shall . . . be deprived of life, liberty, or property, without due process of law.” U.S. Const. amend. V. Consistent with due process, a person facing a deprivation of property is entitled to notice of the reasons for the adverse action and an “opportunity to be heard at a meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 (1976). As to timing, the Fifth Amendment requires (absent extraordinary circumstances) that “an individual be given an opportunity for a hearing before he is deprived of any significant property interest.” Boddie v. Connecticut, 401 U.S. 371, 379 (1971) (emphasis added). Underlying these procedural requirements is a foundational premise: “[W]hen a person has an opportunity to speak up in his own defense, and when the State must listen to what he has to say, substantively unfair and simply mistaken deprivations of property interests can be prevented.” Fuentes v. Shevin, 407 U.S. 67, 81 (1972).
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Had Johns Hopkins received the notice and opportunity to be heard that due process requires—or any semblance of the notice-and-comment process prescribed by the APA—it could have had some chance to engage ICE, raise its concerns, and correct ICE’s misconceptions. That Johns Hopkins and other universities were afforded no such opportunity, none, poses a serious constitutional problem on these facts.
Courts apply a “familiar two-part inquiry” to determine whether the strictures of the Due Process Clause have been satisfied: (1) whether the plaintiff faces a deprivation of a protected property or liberty interest, and, if so, (2) whether that plaintiff has received the process that is due. Logan v. Zimmerman Brush Co., 455 U.S. 422, 428 (1982). Here, it should be clear that Johns Hopkins faces a deprivation of rights and property. “To have a property interest in a benefit, a person . . . must . . . have a legitimate claim of entitlement to it.” Board of Regents of State Colleges v. Roth, 408 U.S. 564, 577 (1972). So “long as a property deprivation is not de minimis, its gravity is irrelevant to the question whether account must be taken of the Due Process Clause.” Goss v. Lopez, 419 U.S. 565, 576 (1975). For example, courts have recognized deprivation of property interests in junk cars and in amounts as low as $100 dollars sufficiently weighty to warrant due process. Propert v. District of Columbia, 948 F.2d 1327, 1333 (D.C. Cir. 1991) (hearing before an “unbiased decision-maker” was required before city could tow and destroy “junk” vehicle); Gray Panthers v. Schweiker, 652 F.2d 146, 158, 179 (D.C. Cir. 1980) (hearing was required before government could deny Medicare claims valued at less than $100).
The July 6 Directive deprives Johns Hopkins and its students of constitutionally protected interests. First, it deprives them of the benefit of the university’s intensive, months-long, data-, and public health-informed effort to craft a sensible and safe plan for providing education to its
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students and would force the university to change course based not on its own assessment of how best to fulfill its academic mission safely but on an arbitrary directive. See Regents of the Univ. of Cal. v. Bakke, 438 U.S. 265, 312 (1978) (“[a]cademic freedom” has “long has been viewed as a special concern of the First Amendment”); Keyishian v. Board of Regents, 385 U.S. 589, 603 (1967) (similar); Sweezy v. New Hampshire, 354 U.S. 234, 263 (1957) (Frankfurter, J., concurring) (recognizing the “four essential freedoms of a university” include its right “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study”); see also Butera v. District of Columbia, 235 F.3d 637, 650–51 (D.C. Cir. 2001) (where state “affirmatively act[s] to increase or create the danger that ultimately results in the individual’s harm,” that may violate due process). Second, the July 6 Directive deprives the university of tuition payments from international students who may have no basis or means to participate because doing so from outside the United States has become impractical, impossible, or not equivalent to the educational program to which they applied. See Continental Training Svcs., Inc. v. Cavazos, 893 F.2d 877, 893 (7th Cir. 1990) (educational institution “had both a liberty and a property interest at stake” in its eligibility for student loan payments under the Higher Education Act and therefore was entitled to due process before eligibility was revoked). Third, it deprives Johns Hopkins of resources it will be required to expend to recertify approximately 5,000 students’ I-20 forms in compliance with the July 6 Directive. See Tri Cnty. Indus., Inc. v. District of Columbia, 104 F.3d 455, 461 (D.C. Cir. 1997) (suspension of building permit violated due process where “interruption of construction [was] likely to be very costly”). Fourth, it deprives the university of housing accommodations and educational opportunities that international students would now be precluded from availing themselves of and paying for. See Propert, 948 F.2d at 1333; Gray Panthers, 652 F.2d at 158.
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And fifth, it creates the possibility that the university will lose programs that depend on international students as their life blood. See generally Bakke, 438 U.S. at 312–14; Keyishian, 385 U.S. at 603; Sweezy, 354 U.S. at 262–63.
Because Johns Hopkins was deprived of its rights and property, it was entitled to due process. In contrast, ICE afforded no process and accepted no input before it abruptly changed policy at the direct and grievous expense of Johns Hopkins and its students. Mathews v. Eldridge, 424 U.S. 319 (1976), demands more. Mathews identifies three factors that a court must evaluate when deciding what process is due for a particular deprivation: (1) “the private interest that will be affected;” (2) “the risk of an erroneous deprivation;” and (3) the “Government[] interest[s]” at issue. 424 U.S. at 335. Balancing these factors, Johns Hopkins and other institutions of higher education throughout the nation were entitled to more process than they were afforded here.
There are substantial private interests at issue here, including Johns Hopkins’ constitutionally protected right of academic freedom and its substantial investment of time, money, and resources in planning its curriculum while keeping its community safe. Similarly, the risk of erroneous deprivation is high given that the government has not proffered any rationale for the July 6 Directive, nor provided an opportunity to contest it. See, e.g., Simms v. District of Columbia, 872 F. Supp. 2d 90, 102 (D.D.C. 2012) (District of Columbia’s vehicle forfeiture scheme created likely risk of erroneous deprivation where “owners [were] given no opportunity to test the probable validity” of impoundment “after the seizure and pending forfeiture proceedings”).
The only discernible rationale has come from the President, and it is merely his desire to force action by the country’s educational institutions. See, e.g., Donald J. Trump
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(@realDonaldTrump), Twitter (July 6, 2020, 2:40 PM), https://tinyurl.com/y7v2ldgm (“SCHOOLS MUST OPEN IN THE FALL!!!”). Left unsaid in the President’s exhortation is why, how, and to what end. The answer, of course, is obvious: the Administration’s Directive serves some unstated political objective, but one that cannot be said aloud without revealing the capricious underlying intent. Finally, it is unclear, at best, what governmental interest existed in avoiding process altogether. By no means did any emergent circumstance require that universities be directed to make important elections and submissions a mere nine days after the change was announced. To the contrary, ICE would have benefitted from inviting comments on the July 6 Directive, which, at the very least, could have informed ICE about the vagaries of its Directive.
2. The July 6 Directive is void for vagueness As things stand, the July 6 Directive is hopelessly vague and leaves Johns Hopkins mystified as to how the university and its students are meant to comply, even as signed certifications of compliance, under penalty of perjury, will be coming imminently due. The Due Process Clause requires that (1) regulated parties “should know what is required of them so they may act accordingly,” and (2) regulations be precise enough to ensure “those enforcing the law do not act in an arbitrary or discriminatory way.” FCC v. Fox Television Stations, Inc., 567 U.S. 239, 253–54 (2012). Where, as here, a rule threatens constitutionally protected rights, “a particularly stringent vagueness and fair-notice test” applies. Karem v. Trump, 960 F.3d 656, 665 (D.C. Cir. 2020). And a regulation such as the July 6 Directive that results from an abrupt change in policy, enacted without opportunity for comment, is even more suspect. See Fox, 567 U.S. at 254 (agency’s abrupt shift in interpretation of law, without regulatory notice and process, illustrated the unconstitutional vagueness of the law). The vagueness of the July 6 Directive leaves universities and students unsure of what
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they must do to retain students’ F-1 visa status. The Directive requires that students attend schools with “in-person instruction” or risk immediate deportation, but it does not explain what “in-person instruction” means in this context. Johns Hopkins needs to know whether programs that, for example, involve self-directed study, provide for student-teacher interaction, or require work in labs, will qualify as “in-person instruction.” See, e.g., Declaration of Student B ¶ 12 (July 13, 2020) (“Although I have signed up for immersive, in-person laboratory work for the coming term, I do not know whether laboratory research on its own will fulfill the requirements under this new guidance.”). Similarly, the Directive requires Johns Hopkins to certify that its fall program “is not entirely online,” but it fails to specify what that entails. See, e.g., MacKenzie Decl. ¶ 14 (“[T]he directive only mandates that F-1 students participate in coursework that is ‘not entirely online,’ but our School’s leadership is not certain how many hours, or credits, of in-person instruction is necessary to fulfill the directive for our students, or to preserve our SEVP accreditation.”).
These indeterminate standards illustrate the danger of vague regulations—danger that is compounded by the inability to comment and alert ICE to the practical questions that need to be answered, clearly and right up front, in order for universities to understand their obligations and plan while they cope with a fast-evolving pandemic that would challenge them under any circumstance. While left bereft of key specifics and in the dark as to what ICE envisions, Johns Hopkins can only speculate about what is required for its thousands of international students to qualify for F-1 visas, while left at the mercy of ICE. Depending on how it subsequently construes and applies its cryptic guidance, ICE may at its discretion reject Johns Hopkins’ determinations and even potentially fault and sanction Johns Hopkins during an audit process for perceived noncompliance and purported false statements in the Form I-20 certification process,
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including by removing Johns Hopkins from the SEVP. Its students, meanwhile, could face significant penalties, including deportation and removal of visa eligibility for up to ten years under 8 U.S.C. § 1182(a)(9)—a sanction that could scar their reputations and careers for life. Especially under these circumstances, the failure to provide “notice of behavioral expectations” may itself render the July 6 Directive void for vagueness. Karem, 960 F.3d at 665.
E. The July 6 Directive Usurps Academic Freedom And Imposes Unconstitutional Conditions
Finally, it bears emphasizing that the July 6 Directive marks a significant—and, by all indications, calculated—intrusion on academic and pedagogical prerogatives and freedoms that the First Amendment specially protects. Visa eligibility, to be sure, is not constitutionally guaranteed. But neither can visa status be manipulated by the government to achieve unconstitutional ends. In particular, the government may not withhold benefits as a consequence of a person’s exercise of constitutional rights. Oil States Energy Servs., LLC v. Greene’s Energy Grp., LLC, 138 S. Ct. 1365, 1377 n.4 (2018) (the doctrine “prevents the Government from using conditions to produce a result which it could not command directly”); Autor v. Pritzker, 740 F.3d 176, 183 (D.C. Cir. 2014) (crediting as viable an unconstitutionalconditions claim on First Amendment grounds where plaintiffs alleged that the government “conditioned their eligibility for the valuable benefit of [certain rights] on their willingness to limit their First Amendment right”). The July 6 Directive, by design, puts Johns Hopkins and other universities to the choice of either surrendering discretion on how best to continue academic instruction with sensitivity to COVID-19 (a real and grave threat to safety) or else subjecting international students to potential deportation. Correspondingly, the Directive forces students holding F-1 visas to choose between attending classes in person, no matter the risks they face (including conditions that may make them specially at risk for COVID-19), or losing their
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immigration status and, in some instances, the ability to complete their education. For reasons already noted, it is all too clear that ICE is leveraging visa status toward
invidious ends removed from its purpose—to make academic freedom yield to the Administration’s political agenda. Lest there be any doubt, the March Guidance acknowledged that the COVID-19 emergency warranted a shift to online classes by many universities. Data and experience confirm that the reality of both the disease and university operations remain materially unchanged. What has changed, apparently, is the Administration’s agenda. But “the government may not require a person to give up a constitutional right . . . in exchange for a discretionary benefit conferred by the government where the benefit sought has little or no relationship to the [right at issue].” Dolan v. City of Tigard, 512 U.S. 374, 385 (1994).
The rights at issue are especially cherished, for the Academy enjoys unique constitutional status. Universities’ educational autonomy falls under the protective umbrella of the First Amendment to the United States Constitution. Bakke, 438 U.S. at 312 (1978) (“[a]cademic freedom” has “long has been viewed as a special concern of the First Amendment”); Keyishian, 385 U.S. at 603; Sweezy, 354 U.S. at 263 (Frankfurter, J., concurring) (recognizing the “four essential freedoms of a university” include its right “to determine for itself on academic grounds who may teach, what may be taught, how it shall be taught, and who may be admitted to study”). The government violates the Constitution when it restricts a university’s freedom to determine “what shall be taught and how it shall be taught,” “interferes with [an institution’s] autonomous decisionmaking,” or “intrudes upon [the] freedom to pursue their academic objectives without interference from the government.” Asociacion de Educacion Privada de Puerto Rico, Inc. v. Garcia-Padilla, 490 F.3d 1, 14–15, 19 (1st Cir. 2007).
Part and parcel of that educational autonomy is educators’ exercise of discretion—and
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discharge of responsibility—to balance the pursuit of their institutions’ academic mission with the health and safety of students under their care. Indeed, nothing can be more sacrosanct within the Academy. The July 6 Directive impermissibly cudgels Johns Hopkins to forsake its carefully calibrated judgment—informed by the world’s leading scientists and COVID-19 experts—about the scheduling and delivery of educational content. Only by caving to ICE’s drastic edict and revising its careful planning can Johns Hopkins protect international students from being summarily stripped of their immigration status and forced to flee the country. The July 6 Directive cannot make the ability of Johns Hopkins’ international students to enter or remain in the United States—and by extension, the university’s ability to carry out its academic function and mission—wholly contingent on the forced transfer from the university to the government of the right to make protected academic judgments and determine how and under what conditions to provide instruction. That amounts to an unconstitutional condition. Oil States Energy, 138 S. Ct. at 1377 n.4.
As for international students who are being forced to choose between attending in-person classes or having their visas revoked, freedom of association under the First Amendment “plainly presupposes a freedom not to associate.” Roberts v. U.S. Jaycees, 468 U.S. 609, 623 (1984); Cal. Democratic Party v. Jones, 530 U.S. 567, 574 (2000). It is difficult to imagine circumstances in which the right not to associate could be more important than during a global pandemic caused by a highly communicable and potentially lethal disease. See, e.g., Declaration of Student A ¶¶ 7, 9 (July 13, 2020). Yet the intended effect of the July 6 Directive is to force international students to put themselves in harm’s way or else lose their visas. In that sense, the Directive is as cruel as it is unconstitutional.
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II. ABSENT AN INJUNCTION, JOHNS HOPKINS WILL SUFFER IRREPARABLE HARM The irreparable harm now faced by Johns Hopkins and its students is obvious, profound,
and impossible to overstate. A plaintiff seeking a temporary restraining order must show (1) risk of “great, actual, and imminent” harm, that is (2) likely to occur in the absence of an injunction, and for which (3) “no other adequate legal remedies [are] available.” Wise v. United States, 128 F. Supp. 3d 311, 319–20 (D.D.C. 2015). The myriad injuries Johns Hopkins and its students imminently will suffer from the July 6 Directive amply satisfy this standard, as the U.S. District Court in Massachusetts has effectively recognized in confronting a parallel challenge and request for temporary restraining order by Harvard and MIT. See Shaffer Decl., Ex. 4, at 9 (“I haven’t seen the government’s response to the TRO motion obviously, but my gut on it is that the big ticket item here is going to be likelihood of success on the merits. I think that irreparable harm and the equities and the societal interest are going to be easier to wrestle with in this case.”).
In particular, the Directive inflicts great harm by dislodging Johns Hopkins, right now, from its proper, autonomous exercise of discretion to manage its curriculum, its educational community, and its community’s health while grappling with the pandemic. Again, Johns Hopkins has constitutional rights in this regard, see supra 35–37, and deprivation of a constitutional right by itself works irreparable harm. Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013). Even setting aside constitutional concerns, however, the stakes and injuries at play are enormous: Mere weeks before the start of the fall semester, Johns Hopkins will have to scrap the plans it scrupulously crafted over prior months, or else put its international students’ visas at risk. Kumar Decl. ¶¶ 8–14; MacKenzie Decl. ¶¶ 5–7; Gange Decl. ¶¶ 5–15. “Johns Hopkins cannot forsake its institutional duty and academic imperatives by taking steps that
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would diminish the participation of international students in our academic programs. But neither can we abdicate our responsibility to act in the best interest of the safety and well-being of our community. The July 6 Directive will force us to choose one or the other. I do not know how we can do that.” Kumar Decl. ¶ 25. Harms such as this to “university employees and students” are “substantial injuries and even irreparable harms.” Washington v. Trump, 847 F.3d 1151, 1169 (9th Cir. 2017).
Most immediately, Johns Hopkins has no sound way to determine, in the next two days, whether any of its programs will be proceeding only through remote instruction; various academic divisions have not yet determined whether they will offer in-person instruction in addition to remote programs. Kumar Decl. ¶ 17. Yet ICE is nonetheless imposing a July 15 deadline for Johns Hopkins to so submit, and Johns Hopkins faces potentially severe consequences for any noncompliance. Id.
Three weeks down the road, Johns Hopkins similarly cannot meet the August 4 deadline without incurring inordinate burdens, expense and exposure that can never thereafter be recovered. Updating and reissuing a student’s Form I-20 is a time-consuming process that would take an experienced administrator up to 30 minutes to complete. Gange Decl. ¶ 20(e). According to the July 6 Directive, Johns Hopkins must go through this exercise for each of its more than 5,000 students by August 4. Shaffer Decl., Ex. 1. That translates to approximately 2,500 hours of work. Gange Decl. ¶ 20(e). Even if the university were staffed and braced (which it is not) to gather and update students’ information in the forms on this tight timetable, many students will not have made their course selections by August 4. Id. But the July 6 Directive takes no account of these impediments and affords no give. See Shaffer Decl., Ex. 1. And even if somehow there were enough hours in the day to process all the I-20 forms, and the
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administrators had all the information necessary to do so, the July 6 Directive’s terms are so confusing and unclear that, in many cases, administrators and students alike would be left guessing about what constitutes an “entirely online course load” even as they are obligated to certify definitively (under penalty of perjury) about whether they so qualify. MacKenzie Decl. ¶ 11; Gange ¶ 20(g).
The July 6 Directive threatens irreparable injury to students too. Johns Hopkins’ international students are leading the charge on innovative, life-saving research (including COVID-19 research) and pursuing life-altering, world-class experiences with Johns Hopkins’ laboratories, facilities, and faculty that they would be forced to abandon were they prohibited from starting the fall 2020 semester or abruptly forced to leave campus midway through if conditions require suspension of in-person learning. Kumar Decl. ¶ 20. Losing their visa status would also deprive these students of associated work permits (known as “Optional Practical Training” or “OPT”) that allow them to enjoy the prized fruits of their studies and connections at Johns Hopkins (for which they have labored and invested so much) and explore possible employment in the United States for a period of time after they obtain their degrees. Id. Still other students would face adverse conditions in their home countries, whether from COVID-19, civil war, unreliable (or nonexistent) Internet connections that make remote learning difficult (or impossible), and repressive regimes that do not permit studying sensitive academic materials, or other factors that prevent them from continuing their studies. Id.; Student A Decl. ¶ 10; Student B Decl. ¶ 13; Student C Decl. ¶ 7; MacKenzie Decl. ¶ 12; Gange Decl. ¶ 20(a).
Of course, students also would be losing forever precious outlays associated with their tuition, leases, security deposits, and last-minute airfare, and some may face continuing student loan obligations for education they cannot access. Moreover, these students and their families
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will be at risk of being gratuitously exposed to the coronavirus if they are required to return home (assuming their countries will even admit travelers from the United States under current travel bans). Student A Decl. ¶ 10; Student B Decl. ¶ 13; Student C Decl. ¶ 7; MacKenzie Decl. ¶ 12; Gange Decl. ¶ 20(a); cf. Costa v. Bazron, --- F. Supp. 3d ----, 2020 WL 2025701, at *8 (D.D.C. Apr. 25, 2020) (finding that “imminent risk to . . . health” from exposure to COVID-19 constitutes irreparable injury and granting temporary restraining order to patients in public health facility). The litany of harms now confronted by international students—and, by extension, their families and communities—is too vast to do justice in this brief and is spelled out in greater detail in accompanying declarations.
Both the threat of physical harm and immigration consequences following agency action can constitute irreparable harm. See, e.g., Kirwa v. United States Dep’t of Def., 285 F. Supp. 3d 21, 44 (D.D.C. 2017) (“threat of removal proceedings, which plaintiffs w[ould] face” because of the challenged action established irreparable harm, even though there was no guarantee that class members would be subject to those proceedings or ultimately removed); Int’l Long Term Care. v. Shalala, 947 F. Supp. 15, 19 (D.D.C. 1996) (closing of a nursing home would create irreparable harm where it would cause residents physical trauma to move them elsewhere); Petties v. District of Columbia, 881 F. Supp. 63, 68 (D.D.C. 1995) (granting preliminary injunction against conduct that caused “stress and anxiety” and posed threat of “ever increasing mental, emotional and physical harm”).
These harms to students flow back to Johns Hopkins in ways that are manifold and immeasurable. When faced with the prospect of obtaining a Johns Hopkins degree via remote instruction from abroad, many students will opt for an alternative. Kumar Decl. ¶ 21. For many programs, particularly advanced-degree programs that attract a substantial proportion of
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international students, in-class instruction may be a relatively minor aspect of the academic experience that pales in pedagogical import as compared to research, laboratory work, and internships. Id. Separately, in some countries—for example, China and India—degrees from international institutions earned via remote instruction may not be recognized and can mean some graduates are ineligible for some categories of jobs in those countries. Id. The bottom line, therefore, is that Johns Hopkins will lose students, thereby not only reducing tuition payments but requiring additional cash outlays from the university for teaching assistants, residential advisors, laboratory assistants, and similar positions that these students would have filled. Id.; MacKenzie Decl. ¶ 11; Gange Decl. ¶ 20(c). The Carey Business School, for example, has a large international student body and will face serious financial stress as a result of the number of students who may be forced to withdraw or defer enrollment. Kumar Decl. ¶ 21. Monetary loss can constitute irreparable harm where it threatens the existence of a business or cannot be recovered due to, as here, sovereign immunity. TD Int’l, LLC v. Fleischmann, 639 F. Supp. 2d 46, 48 (D.D.C. 2009); Brendsel v. Office of Fed. Housing Enterprise Oversight, 339 F. Supp. 2d 52, 66 (D.D.C. 2004) (monetary injury caused by the federal government irreparable because sovereign immunity rendered the plaintiff “unable to sue to recover any monetary damages”). Similarly, the university stands to lose money it has paid to secure hotel rooms, subsidized by university funds and under long-term leases, that would not be needed if students with F-1 visas are forced to leave campus. Id.
In sum, were this Court to use a sliding-scale approach, the irreparable harm evident in this case would effectively be dispositive. Once combined with the legally suspect nature of the July 6 Directive, however, the warrant for emergency and preliminary relief is sealed.
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III. THE BALANCE OF EQUITIES AND PUBLIC INTEREST WEIGH HEAVILY IN FAVOR OF ENJOINING THE JULY 6 DIRECTIVE The balance of harms and public interest overwhelmingly and uniformly align with Johns
Hopkins. The public interest and balance of equities factors “merge” when, as in this case, the government is “the opposing party.” Karem v. Trump, 960 F.3d 656, 668 (D.C. Cir. 2020). Here, these factors favor an injunction with singular force.
At the outset, Johns Hopkins’ likelihood of success necessarily brings the equities and public interest onto its side. Much as deprivations of constitutional rights pose concrete and irreparable harm, “it is always in the public interest to prevent the violation of a party’s constitutional rights.” Klayman v. Obama, 957 F. Supp. 2d 1, 42 (D.D.C. 2013). Indeed, the federal government can never elevate a policy goal “over the Due Process Clause.” Gordon, 721 F.3d at 653. Likewise, “[t]he public interest is served when administrative agencies comply with their obligations under the APA.” R.I.L-R v. Johnson, 80 F. Supp. 3d 164, 191 (D.D.C. 2015). Although that same rationale obtains in other APA challenges, there is much, much more at stake in this case, and all of it weighs on the side of the relief now sought.
Notably, emergency relief has been granted in other challenges to changes in immigration status and policy. See, e.g., Texas v. United States, 86 F. Supp. 3d 591 (S.D. Tex. 2015) (granting preliminary injunction to prevent implementation of a government directive rescinding DACA and Deferred Action for Parents of Americans and Lawful Permanent Residents (DAPA) programs), aff’d, 809 F.3d 134 (5th Cir. 2015); City & Cnty. of San Francisco v. Trump, 897 F.3d 1225 (9th Cir. 2018) (affirming grant of injunction to prevent implementation of Executive Order purporting to prevent “sanctuary jurisdictions” that did not cooperate in federal immigration enforcement efforts from receiving federal grants); E. Bay Sanctuary Covenant v. Barr, 391 F. Supp. 3d 974, 985 (N.D. Cal. 2019) (granting injunction to prevent implementation by
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DHS and Justice Department of joint interim final rule that would deny asylum to almost anyone entering the United States at the southern border if he or she did not first apply for asylum in Mexico or another third country), aff’d, No. 19-16487, 2020 WL 3637585 (9th Cir. July 6, 2020). The warrant for relief in this particular case is no less compelling.
Consider all the international students—among the best and brightest—whose educations, fortunes, and futures now hang in the balance. Next consider all of the many and varied contributions these students are making to their classes, their classmates, their communities, and their campuses at Johns Hopkins. That is not to mention the immense real-time contributions these students are making to pioneering research, to data collection, to combating the scourge of COVID-19 throughout the United States and around the world. Well beyond Johns Hopkins, these students are poised to contribute broadly and deeply—here and abroad—if only they can follow through on their studies and obtain their degrees. Their families, significant others, and friends all stand to suffer if these students are suddenly uprooted—and, still worse, precisely when COVID-19 is spiking and then thrust into settings (like transoceanic flights) where they will be most exposed and most likely to port the disease with them. And the entire public can only benefit from protecting students and universities against artificial pressure to return to classroom settings, without careful, ongoing regard for exposure risks.
The government may defend the July 6 Directive with characteristic vigor and ingenuity, but there can be no denying that a mass of important interests aligns with Johns Hopkins and its students as they seek to preserve the status quo before it is destroyed at the expense of learning, lives, and logical regard for the public interest. Setting aside the political concerns of the Administration, immediate implementation of the Directive can do nothing to serve the public interest. If the Court concludes, after full and fair litigation, that the July 6 Directive withstands
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challenge on the merits, that is one thing. But the Directive should not be permitted to do its worst until the Court can resolve the legal issues that call into question the Directive’s validity.
CONCLUSION For the foregoing reasons, Johns Hopkins respectfully requests that the Court grant a temporary restraining order followed by a preliminary injunction prohibiting ICE’s July 6, 2020 Directive regarding the Student and Exchange Visitor Program from taking effect pending resolution of the merits.

DATED: July 13, 2020

Respectfully submitted, QUINN EMANUEL URQUHART & SULLIVAN LLP

By /s/ William A. Burck William A. Burck (D.C. Bar No. 979677) Derek L. Shaffer (D.C. Bar No. 478775) 1300 I Street NW, 9th Floor Washington, DC 20005 (202) 538-8000 williamburck@quinnemanuel.com derekshaffer@quinnemanuel.com
Kathleen M. Sullivan* Crystal Nix-Hines* Shon Morgan* Marina Lev* 865 S. Figueroa Street, 10th Floor Los Angeles, CA 90017 (213) 443-3000 kathleensullivan@quinnemanuel.com shonmorgan@quinnemanuel.com crystalnixhines@quinnemanuel.com marinalev@quinnemanuel.com
*Motion for admission pro hac vice pending
Attorneys for Plaintiff Johns Hopkins University

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Case 1:20-cv-01873 Document 9-2 Filed 07/13/20 Page 1 of 4

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants.

Case No. 20-cv-1873

DECLARATION OF DEREK L. SHAFFER I, Derek L. Shaffer, declare pursuant to 28 U.S.C. § 1746 as follows: 1. I am a partner of the law firm of Quinn Emanuel Urquhart & Sullivan, LLP, counsel for Plaintiff Johns Hopkins University, and a member in good standing of the bar of this Court. I respectfully submit this declaration in support of Johns Hopkins’ Motion for a Temporary Restraining Order and Preliminary Injunction. 2. Johns Hopkins commenced this action on July 10, 2020. See Dkt. No. 1. Shortly after filing of the Complaint, I notified Daniel Riess, Trial Attorney in the Federal Programs Branch of the Department of Justice, at around 4:31 p.m. Eastern on July 10 that Johns Hopkins had commenced this action and provided him by email with a copy of the Complaint as filed, and

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Case 1:20-cv-01873 Document 9-2 Filed 07/13/20 Page 2 of 4
specifically directed his attention to the fact that, as set forth in the Complaint, we would be moving for a temporary restraining order and preliminary injunction as of this morning. I asked that he alert any appropriate colleagues and invited engagement, pledging to be available any time over the weekend.
3. I then also notified Rayford Farquhar, Assistant United States Attorney for the District of Massachusetts, and similarly provided him with a copy of the Complaint by email, flagging that we would be moving for a temporary restraining order and preliminary injunction this morning. Mr. Farquhar represents the government in a parallel suit brought by the President and Fellows of Harvard College and Massachusetts Institute of Technology in the District of Massachusetts to enjoin the same agency conduct at issue in this case. As I had with Mr. Riess, I invited engagement and dialogue with any and all appropriate colleagues of Mr. Farquhar. Mr. Farquhar responded to my email approximately one and half hours later and informed me that it was his “understanding that the powers that be are aware of [Johns Hopkins’] complaint.” Mr. Riess was copied on Mr. Farquhar’s response.
4. Following my exchange with Mr. Farquhar and his confirmation Friday evening that the powers that be are aware of our case, I heard nothing further from any attorney for the United States over the ensuing two weekend days.
5. Last night, Sunday, July 12, 2020, at 8:44 p.m., more than 52 hours after I emailed him, Mr. Riess responded to my email, stated that he is “not involved” with Johns Hopkins’ suit, and suggested that I contact “the appropriate U.S. Attorney’s Office in the district where the complaint is being filed.” I immediately reminded him of Mr. Farquhar’s statement that the “powers that be are aware” of Johns Hopkins’ suit (as already filed with this Court and attached to the emails I sent to both Mr. Riess and Mr. Farquhar).
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Case 1:20-cv-01873 Document 9-2 Filed 07/13/20 Page 3 of 4

6. Contemporaneously with the filing of Johns Hopkins’ Motion for a Temporary

Restraining Order and Preliminary Injunction, I will email the Motion and all supporting papers

to Mr. Riess and Mr. Farquhar. Because Mr. Riess suggested that I contact “the appropriate U.S.

Attorney’s Office in the district where the complaint is being filed,” I will also email all

pleadings and papers that have been filed in this suit to Daniel Van Horn, Chief of the Civil

Division for the United States Attorney’s Office for the District of Columbia and to all of Mr.

Van Horn’s colleagues listed as contacts for Mr. Horn’s Civil Division. Finally, on July 13,

2020, I will serve all Defendants via registered or certified mail, at the addresses indicated in the

Certificate of Service attached to Johns Hopkins’ Motion, with copies of all pleadings and papers

that have been filed in this suit.

7. Attached to this declaration as Exhibit 1. is Broadcast Message 2007-01, entitled

“COVID-19 and Fall 2020,” dated July 6, 2020, and available at

https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf.

8. Attached to this declaration as Exhibit 2. is “COVID-19 Guidance for SEVP

Stakeholders,”

dated

March

13,

2020,

and

available

at

https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3.

13.20.pdf.

9. Attached to this declaration as Exhibit 3. is Community Interventions and Critical

Populations Task Force, CDC COVID-19 Emergency Response, CRAFT Schools Briefing

Packet (July 8, 2019).

10. Attached to this declaration as Exhibit 4. is a transcript of July 10, 2020 hearing in

President and Fellows of Harvard College v. U.S. Department of Homeland Security, No. 20-cv-

11283-ADB (D. Mass.).

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Case 1:20-cv-01873 Document 9-2 Filed 07/13/20 Page 4 of 4

I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: Washington, D.C. July 13, 2020

/s/ Derek L. Shaffer Derek L. Shaffer

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Case 1:20-cv-01873 Document 9-7 Filed 07/13/20 Page 1 of 3

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants

Case No. 20-cv-1873

[PROPOSED] TEMPORARY RESTRAINING ORDER Upon consideration of the Motion for Temporary Restraining Order, the documents in support thereof, the opposition to the motion for temporary restraining order, and the arguments of counsel, it is hereby ORDERED that Defendants must completely refrain from enforcing Broadcast Message 2007-01, entitled “COVID-19 and Fall 2020,” issued on July 6, 2020, and available at https://www.ice.gov/doclib/sevis/pdf/bcm2007-01.pdf, and it is further hereby

Case 1:20-cv-01873 Document 9-7 Filed 07/13/20 Page 2 of 3
ORDERED that Defendants must continue to treat as fully operative “COVID-19: Guidance for SEVP Stakeholders,” issued March 13, 2010, and available at https://www.ice.gov/sites/default/files/documents/Document/2020/Coronavirus%20Guidance_3. 13.20.pdf.
SO ORDERED.

Dated: _________________, 2020

__________________________________ United States District Judge

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Case 1:20-cv-01873 Document 9-7 Filed 07/13/20 Page 3 of 3
Pursuant to Local Civil Rule 7(k), the following parties are entitled to be notified of this [proposed] order’s entry:
U.S. Department of Homeland Security c/o Office of the General Counsel 2707 Martin Luther King Jr. Ave SE Washington, DC 20528–0485
U.S. Immigration and Customs Enforcement c/o Office of the Principal Legal Advisor 500 12th St. SW, Mail Stop 5900 Washington, DC 20536–5900
Chad Wolf Acting Secretary of the U.S. Department of Homeland Security c/o Office of the General Counsel 2707 Martin Luther King Jr. Ave SE Washington, DC 20528–0485
Matthew Albence Acting Director of the U.S. Immigration and Customs Enforcement c/o Office of the Principal Legal Advisor 500 12th St. SW, Mail Stop 5900 Washington, DC 20536–5900
William P. Barr United States Attorney General United States Department of Justice 950 Pennsylvania Avenue NW Washington, DC 20530
Michael R. Sherwin Acting United States Attorney for the District of Columbia c/o Civil Process Clerk United States Attorney's Office 555 4th Street NW Washington, DC 20530
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 Case 1:20-cv-01873 Document 10 Filed 07/13/20 Page 1 of 7

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants.

Case No. 20-cv-1873

DECLARATION OF ELLEN MACKENZIE I, Ellen MacKenzie, declare pursuant to 28 U.S.C. § 1746 as follows: 1. I serve as Dean of the Johns Hopkins Bloomberg School of Public Health (the “Bloomberg School” or our “School”) and am a Bloomberg Distinguished Professor. As Dean of the Bloomberg School, I am responsible for leading an organization that includes over 700 full-time faculty working in 130 countries and teaching more than 2,600 students from 79 nations. Our School seeks lifesaving solutions across a broad range of issues from chronic and infectious disease prevention to immunology, nutrition and child survival. Our School’s vision is: Protecting Health, Saving Lives—Millions at a Time.

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2. I hold a Ph.D. from Johns Hopkins Bloomberg School of Public Health, a Master of Science from Johns Hopkins Bloomberg School of Public Health, and a Bachelor of Arts from Douglass College of Rutgers University.
3. Before being appointed Dean, I served as professor, department chair and Senior Associate Dean for Academic Affairs at the Bloomberg School. I joined the School’s Health Policy and Management faculty in 1980, with a joint appointment in the Department of Biostatistics. I am a Bloomberg Distinguished Professor and in addition to my Bloomberg School appointments, I hold faculty appointments in the School of Medicine’s departments of Orthopedic Surgery, Emergency Medicine and Physical Medicine and Rehabilitation.
4. I am directly involved in, and oversee, the efforts to devise and implement the academic program of the Bloomberg School in light of the COVID-19 pandemic. Along with faculty and fellow senior administration at the Bloomberg School—including members of the Office of Academic Affairs—I have worked diligently since March to maintain the high quality of a Bloomberg School education, to enable degree-seeking students to progress from admission to graduation and provide certificate and training programs to public health professionals from around the world so they can continue to contribute to the public’s health in their country. Specifically, I am integrally involved in the School’s Fall Teaching Planning Working Group, the Incident Command and Business Continuity Teams, the Enrollment 2020 Work Group and the Online Investment Initiative. I also provide leadership for the standing committees where decisions are made regarding our teaching programs, including our Committee of the Whole, the Advisory Board for the School, and the Management and Finance Committees. At the University level I meet at least weekly with the leadership of the University and serve on the University Pandemic Academic Advisory Committee (UPAAC). Since March, I have personally
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spent at least 50% of my 12-14 hour days planning and strategizing how best to structure our academic programs for the coming fall 2020 semester. The real work, however, is borne by the many members of our faculty and staff who collectively design and run over 90 programs in the School. These include 12 Academic Chairs, 80 Program Heads, 12 Academic Coordinators, the 25 members of our Committee on Academic Standards, the 35 staff of our Center for Teaching and Learning, and the 20 staff in our offices of Academic and Student Services who have been working directly on plans for teaching this fall. Finally, individual faculty and their assistants are working tirelessly to prepare for teaching 420 courses and seminars this fall.
Curricular Planning Efforts at the Bloomberg School Before July 6, 2020 5. As a result of the painstaking and careful planning by the leadership of the School of Public Health, we determined—as recently as Monday, July 6, 2020—that the interests of our students, faculty, and mission would be best served by adopting an entirely online and virtual curriculum for the fall 2020 semester. We envisioned a “virtual campus,” that would take advantage of the very best the digital environment has to offer. In addition to classes that would combine synchronous (real time) and asynchronous (available on demand) instruction that maximizes faculty and student engagement, students would have access to a full array of opportunities to connect both inside and outside the classroom. Students would learn as though they were right here in Baltimore and not physically distanced: taking classes, attending a noontime seminar, joining a study group to prepare for a final exam, meeting with their advisor, reaching out to a teaching assistant for extra help, participating in a research project or practice activity, connecting with alumni and accessing our career services, and perhaps most importantly, getting to know our faculty and their fellow students who become lifelong colleagues and friends.
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6. The Bloomberg School leadership adopted these remote learning plans for several reasons. First, safety considerations needed to factor into our decisions as we responded to the marked resurgence of the COVID-19 virus across the United States, as tracked carefully by the University’s own Coronavirus Resource Center. The health and lives of our students (who, as graduate students, are often older, mid-career professionals) and faculty (over a third of whom are over age 60), can be appropriately protected by reducing in-person coursework to the levels appropriate for the risks identified at a particular point in time. During the onset of COVID-19, for example, we concluded that in-person coursework should be avoided altogether. Second, because our students and faculty are emerging or established public health professionals, preserving their well-being furthers our School’s public health mission worldwide, including the fight against the COVID-19 pandemic. Third, our School has an established record of successfully offering online programs, and we could draw on this extensive experience in extending remote learning offerings. Fourth, it was our judgment that remote learning offers a variety of enhanced pedagogical benefits when compared to a distanced in-person environment that requires masks. For instance, virtual conference applications such as Zoom can facilitate meaningful real-time dialogue in a way that large lectures often cannot, especially when inperson learning must occur with physical distancing measures in place. Student-faculty interactions, such as reviewing mathematical calculations or programming language, can be enhanced if faculty can check students’ work directly through a camera, but such review would impracticable in a masked, distanced environment. We have invested substantial resources to create streaming studios within the building, to enhance the interactivity of online lectures, and are confident in the quality of the education our online experience would provide. Fifth, we believe that offering a completely online, virtual campus would ensure equity in learning
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opportunities for students regardless of their individual and family circumstances, their nationality, or their underlying risks for infection and disease.
7. Part of the basis for our planning has been the Bloomberg School’s reliance on the March 13, 2020 guidance issued by the Student and Exchange Visitor Program (“SEVP”), pursuant to which I understand the United States Immigration and Customs Enforcement (“ICE”) issued an “exemption” to a preexisting rule that students in the country on F-1 visas must attend most classes in person. With this exemption, ICE provided that students holding F-1 visas could attend classes remotely while retaining their visa status for the duration of the COVID-19 emergency. I and others at the Bloomberg School relied on the application of this March 13 guidance in structuring our upcoming curriculum—which we felt best protected the public health needs of our students, faculty and staff in light of the ongoing pandemic.
The July 6, 2020 Directive 8. On July 6, 2020, I and other members of the Bloomberg School leadership became aware of the new ICE directive. We understand that, under this rule, students holding F1 visas would lose their status and be forced to leave the country if enrolled in an entirely remote curriculum such as the one that my colleagues and I had carefully crafted for the fall 2020 semester in reliance on the pre-existing March 13 guidance—and that we understood would be in place for the duration of the COVID-9 emergency. Should the rule remain in place, we will be forced to choose between compromising on the considerations we feel would best protect our students and faculty, or adopting a remote program that will necessarily compel international students to leave the country. 9. As of July 6, 2020, there were 513 students on F-1 visas enrolled at the Bloomberg School of Public Health for the coming fall 2020 semester.
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Harm to the Bloomberg School 10. The Bloomberg School relies heavily on the inclusion of international students in its classes. International students bring a wealth of perspectives informed by diverse experiences in public health the world over; those perspectives form a critical part of our education, research, and practice mission, which is global in scope. International students also fulfill valuable roles as Teaching Assistants in a multitude of classes, do mission-critical research in laboratories and elsewhere, obtain grant funds for the School through numerous sources domestically and abroad, and contribute a significant percentage of the School’s tuition funds. Our School would suffer tremendously from a loss of our international students. In particular, the mission and efficacy of our School would be compromised by a loss of international students—including Johns Hopkins University’s efforts in the global fight against COVID-19, to which many of our international students have been meaningfully contributing. 11. We anticipate our School will suffer significant financial consequences as a result of the July 6 Directive. Due to the considerable uncertainties around mode of education and visa issues, we have already processed more than 94 deferrals among international students. 12. Another troubling result of ICE’s new directive is that some of our F-1 students have reported that they have no safe place to “return” to, because conditions in their home countries may place them at greater exposure to the pandemic. In addition some students expressed concern over inadequate Internet connectivity from their homes abroad. And in some countries, aspects of our public health curriculum, including sexual health, may be deemed objectionable by certain foreign governments which may block our students’ access to our online curriculum.
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13. The new July 6 ICE guidance also places an immense administrative burden on the School of Public Health.
14. The vagueness of the July 6 ICE guidance also places our School and our F-1 students at risk of factors beyond our control. For example, the directive only mandates that F-1 students participate in coursework that is “not entirely online,” but our School’s leadership is not certain how many hours, or credits, of in-person instruction is necessary to fulfill the directive for our students, or to preserve our SEVP accreditation.
15. Even if the Bloomberg School were to adopt an in-person educational component to our curriculum—in the face of our best judgments to the contrary—should a fall resurgence of the virus force our campus to transition entirely to online education in the coming months, any of our F-1 students who elect to remain in the United States would instantly lose their immigration status and be forced to leave the country at a time when travel would be especially precarious. This situation places our students and our School in an untenable position.
I declare under penalty of perjury under the laws of the United States of America that the foregoing is true and correct.

Dated: Baltimore, Maryland July 12, 2020

______________________________ Ellen MacKenzie

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 Case 1:20-cv-01873 Document 11 Filed 07/13/20 Page 1 of 13

UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants.

Case No. 20-cv-1873

DECLARATION OF SUNIL KUMAR I, Sunil Kumar, declare pursuant to 28 U.S.C. § 1746 as follows: 1. I am the Provost and Senior Vice President for Academic Affairs of Johns Hopkins University and have served in that capacity since September 1, 2016. In this role, I serve as the chief academic officer and one of only two Senior Vice Presidents in the University. As part of my responsibility to ensure that Johns Hopkins fulfills its pedagogical mission as a premier academic and research institution, I oversee and coordinate the university’s nine schools, as well as several interdisciplinary programs and academic centers. 2. Before becoming Provost, I was the Dean of the University of Chicago’s Booth School of Business, and before that I spent 14 years on the faculty of the Stanford University

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Graduate School of Business, where I held multiple positions, including senior associate dean for academic affairs. Born in India, I also hold a Master of Engineering degree in computer science and automation from the Indian Institute of Science in Bangalore, and a Bachelor of Engineering degree from Mangalore University in Surathkal. In 1992, I obtained an F-1 visa in order to study at the University of Illinois at Urbana-Champaign, from which I received a Ph.D. in electrical engineering.
3. Johns Hopkins has 27,000 students and is comprised of nine academic divisions, 11 campuses, and more than 260 programs in the arts and music, humanities, social and natural sciences, engineering, international studies, education, business, and health professions, including medicine, nursing, and public health. The Krieger School of Arts and Sciences and the Whiting School of Engineering (which together constitute the majority of the University’s undergraduate students), are primarily located on the Homewood campus in Baltimore. The Bloomberg School of Public Health, the School of Medicine, and the School of Nursing are primarily located on the East Baltimore campus. The Carey Business School and Peabody Institute campuses are primarily located in Baltimore’s Harbor East and Mount Vernon neighborhoods, respectively. The Paul H. Nitze School of Advanced International Studies has its primary campus in Washington, D.C., with additional campuses in Bologna, Italy and Nanjing, China. The School of Education has its primary campus on the Homewood campus in Baltimore, but offers courses and programs at our Montgomery County campus (in Rockville, Maryland), and Columbia Center (in Columbia, Maryland).
4. As the chief academic officer, I directly oversee the deans of each of the university’s academic divisions. Given the sprawling nature of Johns Hopkins’ schools, both in terms of academic discipline and geography, one of the primary objectives of my office is to
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support each school in exercising its academic discretion to develop policies, procedures, and practices that best serve its unique needs, while at the same time ensuring that those policies, procedures, and practices further certain fundamental and enduring values of Johns Hopkins as a whole.
5. Among our core values is ensuring the health and safety of the students, faculty, staff, and other members of the Johns Hopkins community.
6. Equally important is the advancement of Johns Hopkins’ academic mission, including developing skilled, thoughtful, and culturally sensitive global leaders who will be prepared to address the myriad challenges facing the United States and international community in their respective disciplines. Consistent with Johns Hopkins’ global profile, the university’s guiding purpose is to educate its students and cultivate their capacity for lifelong learning, to foster independent and original research, and to bring the benefits of discovery to the world. As Johns Hopkins’ first president said in his inaugural address, “Our simple aim is to make scholars, strong, bright, useful, and true.” This objective remains true today.
7. An indispensable component of fulfilling Johns Hopkins’ mission is the participation of international students in our academic programs. As a global research university, Johns Hopkins is enriched by its ability to welcome undergraduate and graduate students, faculty, staff, researchers, and trainees with different academic and practical training, experiences, cultural backgrounds, and perspectives. This diversity of thought and experiences is enhanced by attracting and nurturing talent from around the world. The university’s diverse academic community includes more than 7,000 international students, faculty, staff, researchers, and trainees, hailing from more than 120 nations. Immigrants, foreign-born scholars, and international students grace every corner of Johns Hopkins’ academic footprint, from its most
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senior leadership positions to its residence halls, labs, classrooms, music studios, and hospitals. Without participation of Johns Hopkins’ international students, the university’s academic community as presently constituted would be severely diminished.
8. It is against this backdrop that Johns Hopkins has endeavored to respond to the COVID-19 crisis and navigate the uncertain times in which the university finds itself. In my role as Provost, I have been intimately involved in Johns Hopkins’ decision-making regarding the university’s response to the COVID-19 pandemic. Among other things, I have (a) ensured that decisions taken during the pandemic are consistent with the independent advice of the Health Advisory Group (which is comprised of expert Johns Hopkins faculty charged with advising the university’s senior leadership on COVID-19 issues and ways to continue safely carrying out Johns Hopkins’ academic mission); (b) oversaw the university’s JHU 2020 Planning efforts, including the Planning Task Force, which is charged with gathering evidence, obtaining advice from COVID-19 and public health experts, and developing and delivering recommendations to the deans and leadership of Johns Hopkins’ various schools and programs; and (c) consulted on a daily, ongoing basis with epidemiologists, medical experts, senior administrators at Johns Hopkins’ peer schools, and others on a wide range of topics relevant to returning students to campus and protecting their safety during instruction. These endeavors have involved hundreds of hours of meetings, review of data, preparation of planning documents, town halls and other outreach to ensure that our decisions are considered, thoughtful, nuanced and based on the best empirical data and scientific and public health judgments.
9. Flexibility and data-driven responsiveness have been the hallmarks of Johns Hopkins’ COVID-19 response. Based in part on the university’s status as the one of the world’s foremost data sources regarding the COVID-19 pandemic, Johns Hopkins benefits from up-to-
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the-minute, world-leading expertise and data regarding the pandemic. This enables Johns Hopkins to make real-time decisions based on the best information available about the pandemic and the disease. Given this unique position, Johns Hopkins has committed to making every effort to provide instruction as we normally would, consistent with the precautions necessary at any given time. For example, if the university’s doctors, epidemiologists, and other COVID-19 experts tell us that, based on conditions in the Nanjing campus, it is safe to hold in-person seminars so long as participants wear masks and observe physical-distancing protocols, then academic programs in Nanjing will be permitted to conduct such seminars (if, of course, we further determine it is pedagogically advisable to do so). But if our experts believe the same approach would not be safe at the Homewood campus, such seminars would not be permitted. And if things get worse (or better) in Nanjing (or Baltimore), the university could suspend (or resume) such seminars, or impose appropriate conditions necessary to make them safe.
10. Put simply, it is Johns Hopkins’ judgment that a nuanced, fluid approach that accounts for real-time conditions on the ground appropriately balances pursuit of our academic mission with the health and safety of the Johns Hopkins community.
11. As a result of this approach, individual Johns Hopkins academic divisions have adopted varying plans for the fall 2020 semester. For example, the Carey Business School has determined that, so long as it is permissible to do so, students taking in-person courses in the fall will spend part of their time in the classroom with small groups of students and the rest of their time participating with the class remotely, with discussion groups and projects conducted remotely depending on the specifics of the course; our undergraduate programs at the Krieger School of Arts and Sciences, the Whiting School of Engineering, and the Peabody Institute have
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similar plans. By contrast, other schools, and individual programs within those schools, are considering adopting an entirely remote curriculum.
12. While ensuring flexibility and responsiveness, and preserving for each academic division freedom to adopt nuanced programs tailored to its unique circumstances, Johns Hopkins has implemented a number of university-wide safety measures. For example, in order to reduce the number of students sharing rooms and enhance safety on and around campus, the university secured rooms for its residential undergraduate students in nearby hotels in which they would be charged subsidized rates, despite the higher premium costs borne by the university. In addition, to avoid the risk inherent in a potential late-autumn resurgence of the virus, the university initially announced that in-person instruction for undergraduates would cease after the Thanksgiving holiday, which would allow students to return to their families without the burden and risks associated with a return to campus to complete the semester. To enhance safety and reduce transmission of the COVID-19 virus, the university made the decision to require that all classes of 50 or more students be held only by remote mechanisms.
13. At the time the Planning Task Force and broader Johns Hopkins leadership was developing plans for the fall 2020 semester, we considered the impact that various modes of learning and instruction would have on the immigration status of our international students. In particular, we were aware of, and relying on, the March 13, 2020, United States Immigration and Customs Enforcement (“ICE”) COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (the “March 13 Guidance”). That guidance explained that students in the United States holding F-1 visas would be permitted to “count online classes towards a full course of study” in the event their school temporarily stopped in-person classes, regardless whether the visa holders remain in the United States. This announcement was important because, before the
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March 13 Guidance, international students were permitted to take only one online class per semester and risked visa cancellation if they did not conduct their studies in-person and from the United States. ICE issued the March 13 Guidance the same day the President of the United States declared a national emergency resulting from COVID-19, and the March 13 Guidance stated it would remain “in eﬀect for the duration of the emergency.”
14. In formulating, adopting, and implementing plans for the fall 2020 semester, Johns Hopkins relied on ICE’s assurance that the March 13 Guidance would continue so long as the COVID-19 crisis remained in effect.
15. I was shocked then when I learned on July 6, 2020 that ICE had issued a directive (the “July 6 Directive”) that effectively reverses the March 13 Guidance. As best I understand it (and a great deal of confusion, uncertainty, and anxiety exists around relevant contours), the July 6 Directive requires Johns Hopkins to, among other things, (a) decide, by July 15, whether any academic program will proceed only by remote means and if so, disclose those programs to ICE; (b) update, by August 1, the operational plans on file with ICE for each academic program and determine whether the program will be solely in-person classes, delayed or shortened sessions, or a hybrid of in-person and remote classes; (c) update, on an ongoing basis, the operational plans on file with ICE, within 10 days of any change in the program’s “operational posture”; and (d) update and reissue, by August 4, the I-20 forms for every single Johns Hopkins student who holds an F-1 visa.
16. There is no way for Johns Hopkins to comply with these requirements without incurring exposure, risks, and costs that no university should be expected to bear. Updating and reissuing a student’s Form I-20 is a time-consuming process. It requires gathering information from the student, including detailed financial information, as well as university databases. It can
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take even an experienced administrator familiar with the process up to 30 minutes to update and reissue a Form I-20. With more than 5,000 students studying at Johns Hopkins on F-1 visas, that translates approximately 2,500 hours of work in the best case scenario. Johns Hopkins’ Office of International Student and Scholar Services, which reports up through me, simply lacks the appropriately trained personnel to complete this work consistent with other obligations in the time allotted under the July 6 Directive. And even if the university were staffed and equipped to gather and update students’ information in the forms, the July 6 Directive’s terms are so confusing and unclear to administrators and students that their impact has upended our planning process for class registration. Without knowing a student’s course load and going through an iterative process, the university cannot certify that “the student is not taking an entirely online course load” as the Directive requires. To make matters even more difficult, it is questionable whether the university can even have its entire course catalogue solidified in time for the August 4 deadline. At the end of this process, I-20 forms must be separately signed by both the university and student, under penalty of perjury, in order to certify compliance, which is subject to auditing and severe sanctions for noncompliance.
17. Similarly, compliance with the July 15 deadline to inform ICE whether any programs will proceed only through remote instruction is impracticable. Consistent with the university’s flexible and responsive approach to the pandemic, a number of academic divisions have not yet determined whether they will offer in-person instruction in addition to remote programs. That decision depends not only on COVID-19 trends, but on the unique pedagogical requirements of each program. In particular, certain programs involve in-person components in labs accompanied by on-line instruction. In such instances I believe that the core educational component of the course is the lab. This will proceed in person if conditions permit. Despite the
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core component of such courses proceeding in person, ICE has not specified whether it would qualify for the hybrid modality. ICE’s current approach seems to fixate on time rather than pedagogical value of the in-person component. Even absent uncertainty on this point and others like it, balancing all interests at play is agonizingly difficult, and for many Johns Hopkins programs, it simply is not possible to complete that process and make a decision by July 15. Throughout the planning process, we have emphasized being prepared to shut down in-person instruction gracefully and to provide students with incentives to leave campus when public health considerations so require. We are investing significantly to enable most courses to be able to make this transition and thereby minimize disincentives to depopulating the campus. We approach with the utmost seriousness the submissions and certifications ICE requires of us, yet we cannot in good conscience definitively commit to one or another modality by the tight deadlines ICE has imposed, unexpectedly, right as we are trying simultaneously to cope with a pandemic and plan semesters and curricula across all of our programs.
18. These difficulties are particularly acute given the profound implications of the July 6 Directive for students and the Johns Hopkins academic community. Under the Directive, students enrolled in a program that has determined to offer only remote learning will lose their visas and be required to leave the United States. Similarly, students enrolled in a program that, like the Carey Business School, begins the semester with some in-person component risk losing their visas mid-semester if conditions (including state or local “shut-down” orders) require suspension of in-person learning, as occurred during the spring semester.
19. Losing students potentially affected by the ICE policy change from campus would be calamitous. Many university curricular programs depend on the presence and diversity of international students and help our students prepare for the world. The curricula at the
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university’s various schools—from the School of Advanced International Studies to its undergraduate programs to the School of Medicine—draw frequently on the perspectives of international students, from 18-year old freshmen speaking about their experiences growing up abroad to mid-career public officials from around the world who bring unique viewpoints about different approaches to governance and policy. The absence of such expertise and perspective diminishes the education for the university and all its students. Even in an entirely remotelearning environment, students and the university benefit immensely from proximity to the university’s libraries, laboratories, and other facilities. Forcing all Johns Hopkins’ students with F-1 visas to desert our campuses would deprive the university of their innovative research contributions, stunt the development of scholarship, and undermine Johns Hopkins’ mission of bringing the benefits of discovery to the world. It would also have a severe economic impact on both the university as well as the students and families that have invested in their educations at our institution. It would so alter the nature of Johns Hopkins and most of our academic programs as to render them virtually unrecognizable.
20. The impact on the students themselves is even worse. Johns Hopkins’ international students are leading the charge on innovative, life-saving research (including COVID-19 research) that would come to a halt if they were not permitted to start the fall 2020 semester or abruptly forced to leave campus midway through if conditions require suspension of in-person learning. Losing their visa status would also deprive these students of associated work permits that allow them to obtain employment in the United States for a period of time after they obtain their Johns Hopkins degree (known as “Optional Practical Training” or “OPT”). Still other students would face deplorable conditions in their home countries, whether from COVID19, civil war, unreliable (or no) Internet connections, repressive regimes that do not permit
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studying sensitive academic materials, other factors. And the practical implications of uprooting from their lives in the United States are considerable, including lost security deposits and broken lease fees, disruption to the lives of some students’ young children, exorbitant costs for lastminute transoceanic flights—not to mention the risk of contracting COVID-19 during unnecessary additional travel in the midst of a raging pandemic. Many of these students would also have to begin their academic programs essentially anew given the difficulties of gaining recognition in certain countries of programs and credits in the United States. These daunting prospects will force many students to interrupt their studies, harming them and Johns Hopkins alike.
21. The implications, financial and otherwise, for Johns Hopkins are also considerable. There can be no doubt that a number of international students faced with a choice between obtaining a Johns Hopkins degree via remote instruction from abroad, or instead enrolling in a program that permits them to live in the United States, or a program in another country, or no program at all, will opt for an alternative to Johns Hopkins. For many programs, particularly advanced degrees that attract a substantial proportion of international students, inclass instruction may be only a minor aspect of the academic experience, with far greater emphasis on research, laboratory work, internships, or networking. For example, some students choose to study at Johns Hopkins over other institutions based largely on their desire to conduct research in the university’s laboratories, with less consideration for course work. Separately, in some countries—for example, China and India—degrees from foreign institutions earned via remote instruction are not recognized and can mean some graduates are ineligible for some categories of jobs in those countries. The inevitable consequence of these factors is that Johns Hopkins will lose students, which not only reduces tuition payments to the university but
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requires additional cash outlays from the university for teaching assistants, residential advisors, laboratory assistants, and similar positions that these students would have filled. The impact of this cannot be overstated. The Carey Business School, for example, has an extensive international student body and will face serious financial stress as a result of the number of students who may be forced to withdraw or defer enrollment. Similarly, the university stands to lose money it has paid to secure hotel rooms, subsidized by university funds and under long-term leases, that would not be needed if students with F-1 visas are forced to leave campus.
22. The prospect of these eventualities makes the already daunting task of weighing the risk of COVID-19 with the fulfillment of academic imperatives extraordinarily complex and extremely vexing. The Johns Hopkins programs that were considering remote-only curricula cannot in good faith make a decision on that issue by July 15. As a result, the July 6 Directive requires Johns Hopkins to make representations to ICE about the intentions of its academic programs that, at best, are incomplete.
23. Beyond the July 15 deadline, the July 6 Directive puts both the university and its students in an untenable position: lose numerous students who bring immense benefits to the school, or take steps to retain those students through a rigid, unvarying commitment to in-person classes, even to the extent those steps contradict the judgments each school would otherwise make about how best to protect the health of the entire university community. And the Directive puts both Johns Hopkins and our students at the mercy of factors entirely outside of our control. Even if the university undertakes the immense burden of processing thousands of I-20 forms in a timely fashion over a very short period, and alters the carefully crafted curricula to ensure that in-person options are available at all schools, we still face the risk of falling out of compliance
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UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

JOHNS HOPKINS UNIVERSITY;
Plaintiff,
v.
U.S. DEPARTMENT OF HOMELAND SECURITY;
U.S. IMMIGRATION AND CUSTOMS ENFORCEMENT;
CHAD WOLF, in his official capacity as Acting Secretary of the U.S. Department of Homeland Security; and
MATTHEW ALBENCE, in his official capacity as Acting Director of the U.S. Immigration and Customs Enforcement;
Defendants.

Case No. 20-cv-1873

DECLARATION OF STEPHEN GANGE I, Stephen Gange, declare pursuant to 28 U.S.C. § 1746 as follows: 1. I am Executive Vice Provost for Academic Affairs of Johns Hopkins University, where I have served since October 2015. In that role, I collaborate with vice provosts, deans, and university leadership to inform the direction of the University’s academic affairs. 2. Before joining the Office of the Provost, I was the Senior Associate Dean for Academic Affairs at the Bloomberg School of Public Health. I joined the faculty of the Bloomberg School in the Department of Epidemiology after receiving a Ph.D. in statistics in 1994 and was promoted to full professor in 2007 before serving as a deputy chair and director of the doctoral program.

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3. My academic specialty is epidemiology, and my research focuses on epidemiologic and statistical methods for cohort studies, data science, evaluation of therapies and biomarkers in observational studies, epidemiology and pathogenesis of HIV/AIDS and data management and statistical coordinating centers. For over 25 years, I have focused primarily on issues relating to HIV/AIDS, with experience and scientific leadership that spans basic, clinical, epidemiological, and policy-level research. I am the Principal Investigator of the MACS-WIHS Combined Cohort Study Data Management and Analysis Center and the Epidemiology/Biostatistics Core co-Director for the North American AIDS Cohort Collaboration of Research and Design. I am a Fellow of the American College of Epidemiology and Invited Member of the American Epidemiological Society.
4. At Johns Hopkins, I have been directly involved in, and have overseen, University efforts to devise and implement the continuity of academic programs across the various schools in light of the COVID-19 pandemic. Along with other senior academics and administrators, I have worked diligently since March to ensure Johns Hopkins maintains its high educational standards despite the challenges of the pandemic. Specifically, I chair the Academic Planning Continuity Workgroup, and am a member of the Core and Steering Committees, and help coordinate the work of the other committees within the University. Since March, I have personally spent approximately 500 hours, and the more than 75 members of my faculty and staff university committees, as well as each graduate schools’ committees, have collectively spent tens of thousands of hours, planning and strategizing how best to structure our academic programs for the Fall 2020 semester.
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Curricular Planning Efforts at Johns Hopkins University Before July 6, 2020 5. In January and February, the University released four statements to the University community with information regarding the rapidly evolving pandemic. By March 10, the decision was made to transition all classes online for the remainder of the semester, and students were asked not to return following Spring Break. 6. Since March 2020, Johns Hopkins has engaged dozens of formal and informal committees and groups to inform its response to the pandemic, including a Health Advisory Group that comprises Johns Hopkins’ faculty charged with advising the University’s senior leadership on COVID-19 issues. Senior University administrators have also been conferring on weekly, and at times daily, Incident Command Calls to ensure the various schools within Johns Hopkins can continue providing high-quality education in a remote environment that is consistent with public health guidance. 7. On May 5, 2020, the University launched a planning task force, which included six primary work groups—the Research Work Group, Academic Programs Work Group, Student Life Work Group, Health & Safety Work Group, Cross-Cutting Work Groups, and Advisory Groups—comprising 23 separate interdisciplinary teams from across the University that included faculty, staff, and students. Over the next eight weeks, each work group evaluated and documented options for a return to campus and provided the University’s deans with broad guidance on safe campus operations so each school, department, and program could develop detailed plans based on particular needs and circumstances. In May 2020, the leadership set out our understanding of compliance regulations in an Online Education Compliance Checklist, appended as Exhibit A.
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8. By May 19, the Research Workgroup published a Guidelines Draft (a final version was published June 12 and updated June 30). A week later, the Johns Hopkins Return to Campus Guide was sent to the community for feedback. On June 4, the Academic Programs Work Group disseminated Instructional Guidelines that focused on options to accommodate the needs of instructors and students while maintaining health and safety in the learning environment. On June 12, the Health and Safety Workgroup published Draft Recommendations for COVID-19 Screening, Testing, and Tracing. Johns Hopkins entered Phase 1 of Reopening on June 15, which included resumption of laboratory research, made possible in part by announcements that Maryland and Baltimore were permitting broader reopening. On June 30, the University announced presumptive plans for fall 2020, assuming a transition from Phase 1 to Phase 2A, which includes beginning mixed-modality undergraduate instruction for the fall semester on August 31. See Exhibit B (Johns Hopkins Homewood Undergraduate Experience – Fall 2020 Return to Campus, highlighting “proposed key changes for Fall 2020”). The Peabody Institute also announced their presumptive plans for fall 2020 on June 30 and each of the graduate schools has been finalizing their fall plans. See Exhibit C (June 30 Letter to Peabody students).
9. The mixed-modality plan adopted by Johns Hopkins would create a largely hybrid system that would enable students to choose their mode of study. No individual student would be forced to take any in-person courses if they are at particular risk of infection, cannot do so in accordance with recommended guidelines, or are otherwise not comfortable doing so. For example, all classes with 50 or more students would be offered remotely in light of the difficulties of satisfying social distancing requirements with that number of students and the constraints of our physical space. As noted in the Return to Campus Instructional Guidelines,
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courses should be designed so that all enrolled students receive an equal opportunity to master course learning objectives regardless of modality. Importantly, students from one modality should not be disadvantaged relative to students attending in another modality (e.g., students attending remote/online because of self-isolation vs. students attending class in-person). Particular challenges may occur when providing instruction to students who are attending both in-person and remotely/online. Some activities, engagement strategies, and assessments may be amenable to some modalities and not others. For some courses, it may be appropriate to provide separate, modified, or alternative activities that achieve the same learning objective or assessment. Instructors have been asked to prepare for how to handle these scenarios and discuss with their program directors whether separate sections (in-person and remote/online) should be developed or other adjustments made to ensure an equitable student experience.
10. To further mitigate the risk inherent in a potential late-autumn resurgence of the virus, University leadership also announced that in-person instruction for undergraduates would cease after the Thanksgiving holiday. Classes after Thanksgiving would resume online for the duration of the term. This approach would allow students to return home to their families for the Thanksgiving holiday, while eliminating the burden of an additional return flight, as well as the risk that students might come back to campus carrying the virus and become a “super-spreader” in a community that houses vulnerable faculty, staff, and other students. Taken together, these nuanced, data-driven, fluid decisions and policies were the product of hundreds of hours of careful planning over several months.
11. With respect to laboratories, Johns Hopkins leadership, together with representatives across multiple Johns Hopkins schools, have worked extensively to ensure that critical research (including research into COVID-19) could safely continue to be conducted in
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laboratory environments. This included a review of cleaning standards for all relevant equipment and machinery, protocols for social distancing by research staff within laboratories, as well as proper protective equipment for all research staff. In total, the Johns Hopkins leadership expended hundreds of hours discussing and strategizing for the optimally safe approach to laboratory work under the circumstances, to ensure that Johns Hopkins researchers are able to continue their work—much of which is critically important to, among other things, the global battle against COVID-19. Phase 1 lab readiness is based on a Principal Investigator (“PI”)driven approach, with school and university oversight. PIs are the most knowledgeable about the details of their research space, workflow, personnel, shared instrumentation, and program priorities. The guidance provided was developed for initial reopening and is intended to align with the resumption of low-risk activities. Every laboratory must have an approved reopening plan as well as a shut-down plan (in the event of increased infection rates) in place before occupancy. Approval of reopening plans is by the relevant Dean’s Office. Wherever possible, work on all projects will be commenced to enhance research momentum and resume research training for all, but not all projects can or will commence at the same time. All lab personnel and PIs have been advised that they are expected to fully comply with university guidance and labspecific protocols, and personnel will be provided easy means for reporting violations.
12. As of July 9, 2020, the University had sent 47 unique messages to the Johns Hopkins’ community, and the work groups had published for public review and comment four draft and two final reports. The views reflected in those reports were also informed by hundreds of Zoom meetings, dozens of presentations, multiple student surveys, 788 unique feedback comments, and the discussions from eight town halls.
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13. In addition to these formal deliberative structures, our administration has consulted on an ongoing basis with epidemiologists, medical experts, industry experts, and others on a wide range of topics relevant to returning students to campus and protecting their safety during instruction.
14. The Johns Hopkins’ leadership decided to adopt the above mixed-modality learning plan for several reasons, including the following, among others: First, safety considerations needed to factor into our decisions as we responded to the marked resurgence of the COVID-19 virus across the United States, as tracked carefully by the University’s own Coronavirus Resource Center. The health and lives of our students (who, as graduate students, are often older, mid-career professionals) and faculty (over a third of whom are over age 60), can be appropriately protected by reducing in-person coursework to the levels appropriate for the risks identified at a particular point in time. During the onset of COVID-19, for example, we concluded that in-person coursework should be avoided altogether. Second, such a mixed approach, varied among Schools, would help to further our academic mission worldwide, including the fight against the COVID-19 pandemic.
15. The above decisions were made in reliance on the COVID-19 Guidance for the Student and Exchange Visitor Program (“SEVP”) issued by United States Immigration and Customs Enforcement (“ICE”) in response to the COVID-19 pandemic. I have carefully reviewed this guidance. On March 13, 2020, ICE issued COVID-19 Guidance for Student and Exchange Visitor Program Stakeholders (“March 13 Guidance”). Pursuant to the March 13 Guidance, students in the United States holding F-1 or M-1 visas are allowed to “count online classes towards a full course of study” in the event their school temporarily stops in-person classes, regardless whether the visa holders remain in the United States. Before the March 13
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Guidance, international students were permitted to take only one online class per semester. The March 13 Guidance stated it would remain “in eﬀect for the duration of the emergency.”
The July 6, 2020 Directive 16. On July 6, 2020, ICE issued a “Broadcast Message: COVID-19 and Fall 2020” (“July 6 Directive”). I have personally reviewed the July 6 Directive, which largely withdraws the exception that ICE announced in March. The July 6 Directive states that if a school determines it will provide only online course instruction in the Fall, students holding F-1 visas may not remain in the country to receive instruction. It provides that students holding F-1 visas “must depart the country or take other measures, such as transferring to a school with in-person instruction to remain in lawful status[,] or potentially face immigration consequences including, but not limited to, the initiation of removal proceedings.” It is our current understanding that if the July 6 Directive takes eﬀect, Johns Hopkins students with F-1 visas who are enrolled in remote programs will face immigration consequences if they do not leave the country within 15 days of the start of the Fall 2020 term. 17. Johns Hopkins currently has approximately 5,000 active students holding F-1 visas, including those students on Optional Practical Training (“OPT”). This program allows eligible students to receive up to 12 months of employment authorization before completing their academic studies and/or after completing their academic studies. Students on STEM OPT allows students who have earned a degree in certain science, technology, engineering, and math fields to apply for a 24-month extension of their post-completion OPT employment authorization if certain other criteria are met. In addition, Johns Hopkins has approximately 2,000 newly admitted students who have not started their programs or F-1 visa status but who have been issued initial Forms I-20 under pre-SEVP fall 2020 guidance.
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18. Many students, including students on F-1 visas, at Johns Hopkins have actively contributed to the University’s efforts in the global battle against COVID-19. Although we shut down much laboratory research for several months in light of the pandemic, we permitted research into COVID-19 to continue, and our faculty, staff, graduate students and trainees, including those on F-1 visas, have contributed substantially to our knowledge about COVID-19. Furthermore, the Johns Hopkins’ epidemiology program, among others, is supported by grants provided to international student researchers.
Harm to Johns Hopkins Due to the July 6 Directive 19. The July 6 Directive, if it takes eﬀect, will have signiﬁcant negative impact on Johns Hopkins as an institution and on Johns Hopkins’ students. As described in more detail below, the July 6 Directive will make it impracticable for certain of Johns Hopkins University’s international students to continue to study at Johns Hopkins and progress toward their degrees, while imposing academic and living conditions for others that will prompt them to take leave from their programs—or drop out altogether. 20. By virtue of the fact that the July 6 Directive is likely to result in far fewer international students enrolled at Johns Hopkins during the coming academic year, the July 6 Directive will aﬀect Johns Hopkins in at least the following additional ways:
a. Requiring additional students (i.e., all F-1 students) to attend in-person classes after Thanksgiving risks negatively impacting the health and wellness of Johns Hopkins’ students, faculty, and staff—as well as the broader community of their families and neighbors. It likewise risks continuation of the valuable efforts of Johns Hopkins’ students and researchers in the battle against COVID-19, and therefore poses an even broader public health risk.
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b. Several of the researchers involved in such work are themselves F-1 visa holders. While under the current mixed-modality plan they would have been able to continue their laboratory work while taking a course-load of entirely remote classes, some students’ course plans would be insufficient for their continued visa status. Forcing them to choose between altering their curricular plans or leaving the country altogether would be extremely disruptive to their research efforts.
c. Several of Johns Hopkins schools will be harmed ﬁnancially if a substantial number of international students do not enroll in the fall. As one example, nearly 20% of our student body is international; losing the tuition of even a portion of those students would be signiﬁcant to Johns Hopkins.
d. Johns Hopkins relies on the contributions of its international graduate students as teaching assistants in its undergraduate courses. Requiring these teaching assistants to provide instruction from remote locations in their home countries, potentially with considerable time-zone disparities and variable Internet connectivity, will make it harder for faculty to coordinate with their teaching assistants and obtain the full beneﬁt of their pedagogy.
e. The new July 6 ICE guidance also places an immense administrative burden on the University. Each form requires soliciting detailed information concerning the fall plans from up to all 5,000 of our new and continuing students who are planning to arrive or remain in the U.S. for fall 2020. Based on the “reporting burden” as stated on the I-20 itself, processing these forms will require up to 2,500 hours of labor, by a regular, fully-trained student advising team of nine
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Johns Hopkins Designated School Officials (“DSOs”) across multiple Schools.

Under normal circumstances, given the steps necessary for the creation and

issuance of each individual form, a single I-20 form may take the university up

to 30 minutes to fully process from requesting the needed information from the

student to sending out the form. That could therefore represent about 288 hours

of work per DSO, without any deterioration of speed, in the three-week span

afforded by the SEVP guidance, with a deadline of August 4. The total time

worked over three weeks by all nine DSOs is 1,012.5 hours at JHU (9 DSOs x

37.5 hours/week x 3 weeks = 1,012.5 work hours). Even if only half of the

5,000 students require a reissued I-20, the team of DSOs is still looking at up to

1,250 hours of work—just for this task.

f. This very tight timeframe renders it virtually impossible for University

administration to change course safely and with the same, appropriate degree of

planning and deliberation as described above—which had been undertaken in

previous months in reliance on the March 13 guidance.

g. The vagueness of the July 6 ICE guidance also places Johns Hopkins and our F-

1 students at risk of factors beyond our control. The directive only mandates

that F-1 students participate in coursework that is “not entirely online,” but our

University’s leadership is not certain precisely how many hours, or credits, of

in-person instruction is necessary to fulfill the directive for our students, or to

preserve our SEVP accreditation.

21.

Attached hereto as Exhibit A is a true and correct copy of the Johns Hopkins

Online Education Compliance Checklist.

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22.

Attached hereto as Exhibit B is a true and correct copy of the “JHU Fall

Undergraduate Experience – Fall 2020 Return to Campus.”

23.

Attached hereto as Exhibit C is a true and correct copy of a June 30 Letter to

Students at the Peabody Institute.

I declare under penalty of perjury under the laws of the United States of America that the

foregoing is true and correct.

Dated: Baltimore, Maryland July 12, 2020

Stephen Gange

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