Complaint — Brown v. Azar

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cv-03702-JPB · Doc. 1 · 2020-09-08 · Docket on CourtListener

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION  
 
 
 
 
 
 
 
: 
 
RICHARD LEE BROWN 
 
: 
CIVIL ACTION NO.: 
 
 
 
 
 
 
: 
COMPLAINT  
Plaintiff, 
 
: 
 
 
 
 
 
 
: 
 
 
v. 
 
 
 
:  
 
 
 
 
 
 
: 
ALEX AZAR, 
 
 
 
: 
IN HIS OFFICIAL CAPACITY AS : 
SECRETARY  
 
 
 
: 
U.S. DEPARTMENT OF  
 
: 
HEALTH AND HUMAN SERVICES: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
 
 
: 
U.S. DEPARTMENT OF  
 
: 
HEALTH AND HUMAN SERVICES: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
 
 
: 
NINA B. WITKOFSKY,  
 
: 
IN HER OFFICIAL CAPACITY AS : 
ACTING CHIEF OF STAFF 
 
: 
U.S. CENTERS FOR DISEASE 
: 
CONTROL AND PREVENTION, 
: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
 
 
: 
U.S. CENTERS FOR DISEASE 
: 
CONTROL AND PREVENTION, 
: 
 
 
 
 
 
 
: 
 
 
 
Defendants.  
: 
 
COMPLAINT 
 
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When Plaintiff, Richard Lee (Rick) Brown, rented the property at issue, he 
expected that his tenant would uphold her end of the contract and pay her rent. He 
also expected, if she did not, that he could resort to the court system to evict his 
tenant so that he could regain possession of his property and let it to a tenant who 
would pay rent.  
 
Mr. Brown upheld his end of the bargain. He provided a habitable home to his 
tenant and continues to pay for maintenance, utilities and other expenses. When Mr. 
Brown’s tenant breached her agreement, he should have been able to follow the 
lawful process laid down by the Virginia General Assembly for retaking possession 
of his home.  
 
Mr. Brown failed to anticipate, however that the U.S. Centers for Disease 
Control, a federal agency, would issue a sweeping unilateral order suspending state 
law under the flimsy premise that doing so was “necessary” to control the COVID-
19 pandemic. CDC’s actions are not authorized by statute or regulation. But even if 
they were, they are unprecedented in our history and are an affront to core 
constitutional limits on federal power. If allowed, the order would abrogate the right 
to access the courts, violate limits on the Supremacy Clause, implicate the non-
delegation doctrine, and traduce anti-commandeering principles. CDC’s effort to 
seize control of state law on such an insupportable basis must be rejected.
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 PARTIES 
1. 
Plaintiff Richard Lee (Rick) Brown is a natural person and a resident of the 
Commonwealth of Virginia.  
2. 
Defendant Secretary Alex Azar is the agency head of the U.S. Department of 
Health and Human Services (HHS) and is sued in his official capacity.  
3. 
Defendant HHS is an agency of the United States.  
4. 
Defendant Nina B. Witkofsky is the Acting Chief of Staff for the Centers for 
Disease Control and Prevention (CDC) and is the agency head responsible for the 
challenged agency action. She is sued in her official capacity.  
5. 
Defendant CDC is an agency of the United States located within HHS and 
headquartered in Atlanta, Georgia.  
JURISDICTION AND VENUE 
6. 
This Court has federal question jurisdiction pursuant to 5 U.S.C. § 702 and 
28 U.S.C. § 1331 as this matter involves questions arising under the Constitution 
of the United States and the Administrative Procedure Act.  
7. 
This Court has the authority to grant declaratory and injunctive relief in this 
matter pursuant to 28 U.S.C. §§ 2201 and 2202.  
8. 
Venue for this action properly lies in this district pursuant to 28 U.S.C. §§ 
1391(b)(1), (2) because the defendants reside in this judicial district and because a 
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substantial part of the events or omissions giving rise to the claim occurred in this 
judicial district.  
STATEMENT OF FACTS 
9. 
Plaintiff Rick Brown owns a residential property at 325 Highland Ave. 
Winchester, VA 22601 (“the property”).  
10. 
Mr. Brown has a mortgage on the property and makes monthly payments of 
approximately $400 for the mortgage principal, interest and taxes. 
 
11. 
On April 1, 2017, Mr. Brown leased the property to a tenant, who agreed to 
pay monthly rent of $925.  
12. 
The lease automatically renewed several times and is currently in effect.  
13. 
The tenant of Mr. Brown’s property has fallen behind on rent, and asserted 
to Mr. Brown that she is unable to pay because of economic stress arising from the 
COVID-19 pandemic, has used best efforts to obtain available government 
assistance and otherwise pay rent, has no other home to go to, and is making less 
than $99,000 annually.  
14. 
To date, the tenant owes $8,092 in unpaid rent, and has made no payments at 
all to Mr. Brown for several months. 
15. 
On March 27, 2020, Congress passed the Coronavirus Aid, Relief, and 
Economic Security (CARES) Act, P.L. 116-316, which included in Section 4024 a 
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limited and temporary moratorium on evictions for certain types of federally-
backed housing that expired on July 24, 2020.   
16. 
On August 7, 2020, a majority of the Supreme Court of Virginia issued an 
order, at the request of Virginia Governor Ralph Northam, modifying and 
extending a declaration of judicial emergency in response to COVID-19. In re: 
Amendment of Eighth Order Extending Declaration of Judicial Emergency in 
Response to COVID-19 Emergency (Va. Aug. 7, 2020) available at 
http://www.vacourts.gov/news/items/covid/2020_0807_scv_amendment_to_eighth
_order.pdf. (August 7 Order).  
17. 
The order provided that from August 10, 2020 through September 7, 2020 
“the issuance of writs of eviction pursuant to unlawful detainer actions is 
suspended and continued. However, this suspension and continuation shall not 
apply to writs of eviction in unlawful detainer actions that are unrelated to the 
failure to pay rent.” Id. at 2.  
18. 
On September 1, 2020, Defendant Acting Chief Witkofsky issued an order 
titled, “Temporary Halt in Residential Evictions to Prevent Further Spread of 
COVID-19.”  
19. 
The order became effective upon publication in the Federal Register, which 
occurred on September 4, 2020. 85 Fed. Reg. 55292 (Sept. 4, 2020), available at 
https://www.govinfo.gov/content/pkg/FR-2020-09-04/pdf/2020-19654.pdf.  
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20. 
The order provided, “Under this Order, a landlord, owner of a residential 
property, or other person with a legal right to pursue eviction or possessory action, 
shall not evict any covered person from any residential property in any jurisdiction 
to which this Order applies during the effective period of the Order.” Id. 
21. 
The order was not effective so long as a local jurisdiction applied similar 
eviction restrictions. Id.  
22. 
The order said, “‘Evict’ and ‘Eviction’ means any action by a landlord, 
owner of a residential property, or other person with a legal right to pursue eviction 
or a possessory action, to remove or cause the removal of a covered person from a 
residential property. This does not include foreclosure on a home mortgage.” Id. at 
55293.  
23. 
The order also said, “[A] person violating this Order may be subject to a fine 
of no more than $100,000 if the violation does not result in a death or one year in 
jail, or both, or a fine of no more than $250,000 if the violation results in a death or 
one year in jail, or both[.]” Id. at 55296.  
24. 
The order was effective upon publication until December 31, 2020, “unless 
extended.” Id. at 55297. 
25. 
Mr. Brown has maintained the property in compliance with all legal 
obligations as a landlord, and the tenant has no other defense to her nonpayment of 
rent.  
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26. 
Mr. Brown is entitled to a writ of possession and a writ of eviction. 
 
27. 
On August 18, 2020, Mr. Brown attempted to have the Winchester City 
Sheriff’s Department serve a five-day termination notice pursuant to Va. Code § 
55.1-1245(f) to the tenant.  
28. 
Sheriff Les Taylor informed Mr. Brown that the Winchester City Sheriff’s 
Department would no longer issue and serve such notices in compliance with the 
Supreme Court of Virginia’s order. 
29. 
Because of operation of the Supreme Court of Virginia’s August 7 Order, 
Mr. Brown was unable to obtain a writ of eviction to oust the tenant for 
nonpayment of rent until September 7, 2020. 
30. 
Mr. Brown now intends to seek eviction of his tenant for nonpayment of rent 
using legal process in Virginia state courts.  
31. 
Upon information and belief, Mr. Brown’s tenant is a “covered person” 
under CDC’s Order.  
32. 
Mr. Brown intends to violate CDC’s order through lawful processes under 
Virginia law by seeking an eviction order, and having a sheriff forcibly remove his 
tenant from the property.  
33. 
Mr. Brown intends to violate CDC’s order even if his tenant presents an 
attestation in eviction proceedings that she is a “covered person” as defined in 
CDC’s order.  
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34. 
Mr. Brown continues to provide habitable premises to the tenant, and his 
tenant has no other defense to eviction under Virginia law.  
35. 
Because of the CDC order, Mr. Brown suffers significant economic 
damages, including $8,092 in unpaid rent, as well as monthly maintenance costs, 
damages to his property and the lost opportunity to rent or use the property at fair 
market value of at least $925 per month.  
36. 
The tenant is also likely insolvent (and judgment proof), and Mr. Brown will 
be unlikely to obtain any economic relief or damages from the tenant once the 
CDC order expires at the end of December. 
37. 
Mr. Brown’s only opportunity to mitigate his loss will be from ousting the 
tenant who is in wrongful possession of the premises.  
COUNT I: UNLAWFUL AGENCY ACTION IN VIOLATION OF THE 
ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. §§ 706(2)(B),(C)—CDC 
EXCEEDED ITS STATUTORY AND REGULATORY AUTHORITY BY 
ISSUING THE HALT IN RESIDENTIAL EVICTIONS ORDER 
 
38. 
Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
39. Under the Administrative Procedure Act, this Court is authorized to hold 
unlawful and set aside agency action, findings, and conclusions that it finds to be 
contrary to constitutional right or in excess of statutory jurisdiction, authority, or 
limitations, or short of statutory right. See 5 U.S.C. §§ 706(2)(B), (C). 
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40. The Order was purportedly issued under the authority of “Section 361 of the 
Public Health Service Act (42 U.S.C. 264) and 42 CFR 70.2.” 
41. Under 42 U.S.C. § 264(a) the CDC may only “make and enforce such 
regulations” that “are necessary to prevent the introduction, transmission, or 
spread of communicable diseases from foreign countries into the States or 
possessions, or from one State or possession into any other State or possession” 
and “may provide for such inspection, fumigation, disinfection, sanitation, pest 
extermination, destruction of animals or articles found to be so infected or 
contaminated as to be sources of dangerous infection to human beings, and other 
measures, as in his judgment may be necessary” to carry out and enforce such 
regulations.  
42. Under 42 C.F.R. § 70.2, when the Director of the CDC “determines that the 
measures taken by health authorities of any State or possession (including political 
subdivisions thereof) are insufficient to prevent the spread of any of the 
communicable diseases from such State or possession to any other State or 
possession” the Director is authorized to “take such measures to prevent such 
spread of the diseases as he/she deems reasonably necessary, including inspection, 
fumigation, disinfection, sanitation, pest extermination, and destruction of animals 
or articles believed to be sources of infection.” 
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43. The Order purports to restrict “a landlord, owner of a residential property, or 
other person with a legal right to pursue eviction or possessory action” from 
“evict[ing] any covered person from any residential property in any jurisdiction to 
which this Order applies during the effective period of the Order.” 85 Fed. Reg. at 
55292. A “covered person” is “any tenant, lessee, or resident of a residential 
property who provides to their landlord, the owner of the residential property, or 
other person with a legal right to pursue eviction or a possessory action, a 
declaration under penalty of perjury indicating” certain information outlined in the 
Order. 85 Fed. Reg. at 55293; see also 85 Fed. Reg. at 55297 (CDC Declaration 
form). The effective period of the Order is from September 4, 2020 through 
December 31, 2020. 85 Fed. Reg. at 55292. 
44. The Order only applies to States, local, territorial, or tribal areas that do not 
have “a moratorium on residential evictions that provides the same or greater level 
of public-health protection than the requirements listed in this Order.” 85 Fed. 
Reg. at 55292. 
45. The Order baldly states that Defendant Witkofsky “determined the 
temporary halt in evictions in this Order constitutes a reasonably necessary 
measure under 42 CFR 70.2 to prevent the further spread of COVID-19 
throughout the United States.” 85 Fed. Reg. at 55296. The Order further states that 
she “determined that measures by states, localities, or U.S. territories that do not 
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meet or exceed these minimum protections [i.e., those that have residential 
eviction moratoria] are insufficient to prevent the interstate spread of COVID-19.” 
85 Fed. Reg. at 55296. 
46. The Order does not identify or offer any analysis whatsoever about which 
States, local, territorial, or tribal areas have “a moratorium on residential evictions 
that provides the same or greater level of public-health protection than the 
requirements listed in this Order.” 85 Fed. Reg. at 55292. 
47. Individuals or organizations that violate the Order are subject to criminal 
penalties, including fines and jail time. See 85 Fed. Reg. at 55296; see also 18 
U.S.C. §§ 3559, 3571; 42 U.S.C. § 271; 42 C.F.R. § 70.18. 
48. Agencies have no inherent power to make law. See Loving v. United States, 
517 U.S. 748, 758 (1996) (“the lawmaking function belongs to Congress … and 
may not be conveyed to another branch or entity.”). This limitation is a 
constitutional barrier to an exercise of legislative power by the executive branch. 
Agencies have “no power to act … unless and until Congress confers power upon 
[them].” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). 
49. Nothing in the relevant statutes or regulations purports to give CDC the 
power or authority to issue an eviction-moratorium order.  
50. Nothing in the relevant statutes or regulations purports to give CDC the 
power or authority to criminalize otherwise lawful behavior. 
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51. The Order was issued in excess of any statutory authority and is therefore 
invalid. 
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT II: VIOLATION OF THE RIGHT OF ACCESS TO COURTS 
UNDER THE U.S. CONSTITUTION—THE ORDER UNLAWFULLY 
DENIED MR. BROWN ACCESS TO THE ONLY LAWFUL MEANS OF 
EVICTING A DELINQUENT TENANT  
 
52. 
Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
53. 
The Article IV Privileges and Immunities Clause, the First Amendment 
Petition Clause, the Fifth and Fourteenth Amendment Due Process Clauses and the 
Fourteenth Amendment’s Equal Protection Clause collectively provide a federal 
constitutional right of access to courts. Christopher v. Harbury, 536 U.S. 403, 415, 
415 n. 12 (2002). 
54. 
No state actor may systemically frustrate a plaintiff “in preparing and filing 
suits” by foreclosing a particular type of relief. Id. at 413.  
55. 
An unlawful detainer action is a landlord’s sole means of reacquiring 
possession of his residential property in Virginia. A sheriff must enforce a writ of 
eviction. See Va. Code § 8.01-470 (writs of eviction generally). A residential 
landlord is forbidden from taking possession of his own property. Va. Code § 55.1-
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1252. Instead, “[i]f a landlord unlawfully removes or excludes a tenant from the 
premises … the tenant may obtain an order from a general district court to recover 
possession, require the landlord to resume any such interrupted essential service, or 
terminate the rental agreement and, in any case, recover the actual damages 
sustained by him and reasonable attorney fees.” Va. Code. § 55.1-1243(a). 
56. 
Plaintiff is entitled to obtain a writ of eviction pursuant to Virginia law for 
the nonpayment of rent at 325 Highland Ave. Winchester, VA 22601.  
57. 
The tenant currently owes $8092 in unpaid rent and has no defenses other 
than the CDC order to an unlawful detainer proceeding.  
58. 
By operation of the order, Plaintiff is unable to obtain a writ of eviction 
pursuant to an unlawful detainer action.  
59. 
Plaintiff has no ability to legally oust his tenant for nonpayment of rent.  
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT III: VIOLATION OF U.S. CONSTITUTION’S SUPREMACY 
CLAUSE—THE CDC EVICTION-MORATORIUM ORDER CANNOT BE 
THE SUPREME LAW OF THE LAND BECAUSE IT IS NOT A LAW 
ADOPTED PURSUANT TO THE CONSTITUTION 
 
60. 
Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
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61. 
Article VI, Clause 2 of the United States Constitution provides: “This 
Constitution, and the Laws of the United States which shall be made in Pursuance 
thereof; and all treaties made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land; and the judges in every state 
shall be bound thereby, anything in the Constitution or laws of any State to the 
contrary notwithstanding.” 
62. 
The Supremacy Clause grants “supreme” status only to the “Laws of the 
United States.” Id. (emphasis added). 
63. 
“[A]n agency literally has no power to act, let alone to pre-empt the validly 
enacted legislation of a sovereign State, unless and until Congress confers power 
upon it.” New York v. FERC, 535 U.S. 1, 18 (2002). 
64. 
“[P]reemption takes place only when and if the agency is acting within the 
scope of its congressionally delegated authority.” Merck Sharp & Dohme Corp. v. 
Albrecht, 139 S. Ct. 1668, 1679 (2019). 
65. 
The Supremacy Clause grants “supreme” status only to the “Laws of the 
United States which shall be made in Pursuance thereof,” i.e. in pursuance of 
“This Constitution.” U.S. Const. Art. VI, cl. 2 (emphasis added). 
66. 
The conditional nature of the Supremacy Clause accords supremacy to 
federal statutes or regulations made “in Pursuance of” the Constitution.  
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67. 
CDC has not identified any act of Congress that confers upon it the power to 
impose a halt on residential evictions. 
68. 
CDC has not identified any act of Congress that shows it is acting within the 
scope of some congressionally delegated authority to impose eviction moratoriums 
across the United States. 
69. 
Indeed, Section 4024 of the CARES Act, which imposed a temporary 
moratorium on certain evictions, contained no delegation of authority to any 
agency, much less CDC, and even then only applied to certain federally-backed 
housing.   
70. 
The weaker the link between relevant federal statutes and CDC’s eviction-
moratorium order, the weaker is CDC’s ability to invoke the Supremacy Clause to 
deprive Plaintiff of his right to state-court eviction process.  
 
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT IV: VIOLATION OF U.S. CONSTITUTION’S SUPREMACY 
CLAUSE AND TENTH AMENDMENT—THE CDC EVICTION-
MORATORIUM ORDER DOES NOT VALIDLY PREEMPT STATE LAW 
 
71. Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
72. Article VI, Clause 2 of the United States Constitution provides: “This 
Constitution, and the Laws of the United States which shall be made in Pursuance 
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thereof; and all treaties made, or which shall be made, under the authority of the 
United States, shall be the supreme law of the land; and the judges in every state 
shall be bound thereby, anything in the Constitution or laws of any State to the 
contrary notwithstanding.” 
73. The Tenth Amendment to the United States Constitution provides: “The 
powers not delegated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to the people.” 
74. The relevant statute, 42 U.S.C. § 264(a), only authorizes CDC to make and 
enforce regulations that “provide for such inspection, fumigation, disinfection, 
sanitation, pest extermination, destruction of animals or articles found to be so 
infected or contaminated as to be sources of dangerous infection to human beings, 
and other measures, as in his judgment may be necessary.”  
75. The relevant regulation, 42 C.F.R. § 70.2, also only authorizes CDC to “take 
measures to prevent such spread of the diseases as he/she deems reasonably 
necessary, including inspection, fumigation, disinfection, sanitation, pest 
extermination, and destruction of animals or articles believed to be sources of 
infection.”  
76. Nothing in the relevant statutes or regulations purports to give CDC the 
authority to issue an eviction-moratorium order that preempts state landlord-tenant 
law. 
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77. Nothing in the relevant statutes or regulations purports to give CDC the 
authority to preempt the Contracts Clause of Article I, Section 10 of the United 
States Constitution, the Contracts Clauses of the state constitutions, or otherwise 
preempt state law protecting from impairment the obligations of private contracts 
that are in force. 
78. Nothing in the relevant statutes or regulations gives CDC the authority to 
order a nationwide moratorium “to temporarily halt residential evictions to prevent 
the further spread of COVID-19,” CDC Order, 85 Fed. Reg. at 55292, because 
CDC’s authority is confined to undertaking measures providing for “inspection, 
fumigation, disinfection, sanitation, pest extermination, destruction of animals or 
articles found to be so infected or contaminated as to be sources of dangerous 
infection to human beings.” 42 U.S.C. § 264(a); 42 C.F.R. § 70.2.  
79. Although “state laws can be pre-empted by federal regulations as well as by 
federal statutes,” Hillsborough County, Fla. v. Automated Medical Lab, Inc., 471 
U.S. 707, 713 (1985), the relevant statute contains a savings clause, which states: 
“Nothing in this section or section 266 of this title, or the regulations promulgated 
under such sections, may be construed as superseding any provision under State 
law (including regulations and including provisions established by political 
subdivisions of States), except to the extent that such a provision conflicts with an 
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exercise of Federal authority under this section or section 266 of this title.” 42 
U.S.C. § 264(e).  
80. The savings clause of 42 U.S.C. § 264(e) states that 42 U.S.C. § 264(a) and 
42 C.F.R. § 70.2 cannot “be construed as superseding any provision under State 
law (including regulations and including provisions established by political 
subdivisions of States).” In other words, the CDC is statutorily expressly 
deauthorized from issuing orders such as the eviction-moratorium order that 
would supersede state landlord-tenant law, or state laws relating to non-
impairment of contracts.  
81. The relevant state landlord-tenant laws and laws relating to non-impairment 
of contracts do not conflict with CDC’s authority to regulate “inspection, 
fumigation, disinfection, sanitation, pest extermination, destruction of animals or 
articles found to be so infected or contaminated as to be sources of dangerous 
infection to human beings.” 42 U.S.C. § 264(a). 
82. Landlord-tenant law and law relating to non-impairment of contracts “has 
long been regarded as a virtually exclusive province of the States” under the Tenth 
Amendment upon which the federal government cannot intrude. Sosna v. Iowa, 
419 U.S. 393, 404 (1975). The CDC order displaces inherent state authority over 
residential evictions and therefore violates the Tenth Amendment. 
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WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT V: VIOLATION OF U.S. CONSTITUTION’S TENTH 
AMENDMENT—THE CDC EVICTION-MORATORIUM ORDER 
UNCONSTITUTIONALLY COMMANDEERS STATE RESOURCES AND 
STATE OFFICERS TO ACHIEVE FEDERAL POLICY OBJECTVES OR 
EXECUTE FEDERAL LAWS 
 
83. Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
84. The Tenth Amendment to the United States Constitution provides: “The 
powers not delegated to the United States by the Constitution, nor prohibited by it 
to the States, are reserved to the States respectively, or to the people.” 
85. Under the Tenth Amendment and the anti-commandeering doctrine, CDC 
cannot commandeer state resources to achieve federal policy objectives or 
commandeer state officers to execute federal laws. CDC’s eviction-moratorium 
order impermissibly commandeers state courts and state officers to act as arms of 
CDC. CDC’s eviction-moratorium order impermissibly commandeers state courts 
and state officers to apply, enforce, and implement an unconstitutional federal law. 
New York v. United States, 505 U.S. 144 (1992); Printz v. United States, 521 U.S. 
898 (1997). 
86. CDC cannot order state courts and relevant state actors not to process 
summary evictions. A landlord, like the Plaintiff, who relies on state process, runs 
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the risk of a federal prosecution for doing so. Plaintiff runs the risk of being fined 
up to $100,000 and sentenced to one year in prison for invoking and utilizing 
relevant state laws. See CDC Order, 85 Fed. Reg. at 55296. 
87. Neither Congress nor CDC can “compel the States to … administer a federal 
regulatory program.” New York v. United States, 504 U.S. at 188. Neither 
Congress nor CDC can “halt” pending or forthcoming state adjudicatory 
proceedings. CDC Order, 85 Fed. Reg. at 55296. Neither Congress nor CDC can 
modify state judicial processes by dictating that a declaration executed by a tenant 
shall be adequate proof or otherwise suffice to halt or suspend the judicial eviction 
action. Id. at 55292–93, 55297. 
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT VI: VIOLATION OF U.S. CONSTITUTION ART I, § 1—THE 
CDC ORDER IS AN INVALID EXERCISE OF LEGISLATIVE POWER  
 
88. Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
89. Article I, § 1 of the U.S. Constitution states, “All legislative Powers herein 
granted shall be vested in a Congress of the United States.” (Emphasis added.) 
The grant of “[a]ll legislative Powers” to Congress in the Vesting Clause means 
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that Congress may not divest “powers which are strictly and exclusively 
legislative.” Wayman v. Southard, 23 U.S. 1, 42-43 (1825). 
90. Whether federal legislation effects a permissible or prohibited delegation of 
legislative powers—and thus violates the Article I, § 1 Vesting Clause—is 
determined based on whether the legislation provides “an intelligible principle” to 
which an administering agency is directed to conform when carrying out its 
functions under the legislation. Mistretta v. United States, 488 U.S. 361, 372 
(1989). If the law fails to provide a guiding principle of that sort but instead 
delegates to the agency authority to establish its own policies, the legislation is 
invalid because it violates the Vesting Clause. Id.  
91. As interpreted by CDC, 42 U.S.C. § 264(a) fails to set forth any “intelligible 
principle” to which CDC is directed to conform. Citing § 264(a), the Order 
imposes a nationwide moratorium on residential evictions based on CDC’s 
judgment that a moratorium is necessary to curb “the introduction, transmission, 
or spread of communicable diseases.” But if that finding is sufficient to justify the 
moratorium, then § 264(a) imposes no discernible limits on CDC’s regulatory 
authority. 
92. Alternatively, if § 264(a) supplies a sufficient intelligible principle under 
current interpretation, then the doctrine must be re-examined so as to adhere to the 
proper limits contained in the Vesting Clause of Article I, § 1.  
Case 1:20-cv-03702-JPB   Document 1   Filed 09/08/20   Page 21 of 27

22 
 
 
93. As interpreted by the Order, § 264(a) would also authorize CDC to prohibit 
all citizens from attending church services, assembling for the purpose of 
expressing their political views, or even leaving their own homes. It is debatable 
whether such measures could pass constitutional muster if adopted by Congress 
itself; but it is beyond dispute that such measures constitute the sorts of policy 
decisions that the Constitution reserves to Congress alone in its role as the 
Nation’s exclusive repository of legislative power. 
94. Because § 264(a), as interpreted by CDC, fails to include an intelligible 
principle that imposes limits on CDC’s alleged regulatory authority, § 264(a) 
violates the Article I, § 1 Vesting Clause and is thus invalid as applied. 
95. Because § 264(a) is unconstitutional as applied here, CDC lacks any 
statutory authority to adopt the Order.  
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate. 
COUNT VII: UNLAWFUL SUSPENSION OF LAW—NEITHER STATUTE 
NOR CONSTITUTION AUTHORIZES CDC TO WAIVE, DISPENSE 
WITH, OR SUSPEND STATE EVICTION LAWS  
 
96. Plaintiff incorporates by reference all of the preceding material as though 
fully set forth herein. 
97. Evictions are a function of the police power of the several states. Cf. Edgar 
A. Levy Leasing Co. v. Siegel, 258 U.S. 242, 247 (1922) (considering the New 
Case 1:20-cv-03702-JPB   Document 1   Filed 09/08/20   Page 22 of 27

23 
 
 
York legislature’s authority to enact emergency housing laws under the state’s 
police power). In Virginia, a landlord’s rights and remedies upon a material breach 
of a rental agreement, including the right to an eviction and the recovery of 
possession based on nonpayment of rent, are governed by a comprehensive 
statutory scheme. See Va. Code §§ 8.01-470, 55.1-1245 et seq. 
98. CDC’s order purports to waive or suspend the duly enacted laws that govern 
evictions in the Commonwealth of Virginia.   
99. CDC has no authority to waive, dispense with, or suspend duly enacted state 
laws; nor does the Executive Branch more generally. See Matthews v. Zane’s 
Lessee, 9 U.S. 92, 98 (1809) (Marshall, C.J.) (“The president cannot dispense with 
the law, nor suspend its operation.”); Baker v. Carr, 369 U.S. 186, 244 n.2 (1962) 
(“No tribunal or department in our system of governments ever can be lawfully 
authorized to dispense with the laws, like some of the tyrannical Stuarts, or to 
repeal, or abolish, or suspend the whole body of them[.]”) (quoting Luther v. 
Borden, 48 U.S. 1, 69 (1849) (Woodbury, J., dissenting)). 
100. To the contrary, the United States Constitution forbids the Executive Branch 
from suspending the law.   
101. The separation of powers enshrined in our Constitution prevents the 
suspension of law through executive action, as it would effect a merger of the 
executive and legislative powers. See Philip Hamburger, Nat’l Rev., Are Health-
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24 
 
 
Care Waivers Unconstitutional? (Feb. 8, 2011), available at 
https://www.nationalreview.com/2011/02/are-health-care-waiversunconstitutional-
philip-hamburger (“The power to dispense with the laws had no place in a 
constitution that divided the active power of government into executive and 
legislative powers.”). Suspension of laws by the Executive Branch is “a power 
exercised not through and under the law, but above it.” Id.   
102. The Founder’s placement of the Suspension Clause in Article I reflects that 
the U.S. Constitution continued the English common-law tradition of vesting the 
suspension power solely in the Legislative Branch. See Philip Hamburger, Beyond 
Protection, 109 COLUM. L. REV. 1823, 1919 (2009); Amanda L. Tyler, Habeas 
Corpus in Wartime: From the Tower of London to Guantanamo Bay (2017) 
(chronicling the original meaning of the Suspension Clause). The limited 
exception for the suspension of habeas corpus “in Cases of Rebellion or Invasion” 
when “the public Safety may require it” proves the more general rule that duly 
enacted laws may not be suspended during an emergency that is neither a rebellion 
nor an invasion, even by Congress. U.S. Cont., art. I, § 9, cl. 2. 
103. And in contrast to the legislature’s suspension authority, the executive 
“could not, even during an emergency, seize property” or “constrain the natural 
liberty of persons who were within the protection of the law, unless [the 
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25 
 
 
executive] had legislative authorization.” Hamburger, Beyond Protection, 109 
COLUM. L. REV. at 1919. 
104. CDC has not identified any act of Congress that delegated authority to 
impose an eviction moratorium across the United States. Section 264(a) authorizes 
CDC only to make and enforce regulations that “provide for such inspection, 
fumigation, disinfection, sanitation, pest extermination, destruction of animals or 
articles found to be so infected or contaminated as to be sources of dangerous 
infection to human beings, and other measures, as in his judgment may be 
necessary.”  
105. With no applicable grant of statutory authority to suspend laws, CDC has no 
authority to do anything with respect to Virginia’s comprehensive laws. See Home 
Bldg & Loan Ass’n v. Blaisdell, 290 U.S. 398, 425 (1934) (“Emergency does not 
create power.  Emergency does not increase granted power or remove or diminish 
the restrictions imposed upon power granted or reserved.”).   
106. Because CDC could not lawfully waive the application of Virginia’s laws 
governing evictions, Va. Code §§ 8.01-470, 55.1-1245 et seq., the Order is void ab 
initio and must fail. 
WHEREFORE, Plaintiff demands judgment against CDC invalidating CDC’s 
eviction-moratorium order and any other relief that may be appropriate.
Case 1:20-cv-03702-JPB   Document 1   Filed 09/08/20   Page 25 of 27

 
September 8, 2020
Respectfully,  
 
/s/ James W. Hawkins 
James W. Hawkins 
Georgia State Bar No. 338767 
JAMES W. HAWKINS, LLC 
5470 Blair Valley Run 
 
Cumming, GA 30040 
V: 678-697-1278 
F: 678-540-4515 
jhawkins@jameswhawkinsllc.com 
 
/s/ Caleb Kruckenberg  
Caleb Kruckenberg  
Litigation Counsel  
New Civil Liberties Alliance 
1225 19th St. NW, Suite 450 
Washington, DC 20036  
caleb.kruckenberg@ncla.legal 
(202) 869-5210 
Motion to Appear Pro Hac Vice 
Forthcoming 
Counsel for Plaintiff
Case 1:20-cv-03702-JPB   Document 1   Filed 09/08/20   Page 26 of 27

CERTIFICATE OF COMPLIANCE 
 
I hereby certify that the foregoing court filing has been prepared in 14-point 
Times New Roman font and complies with LR 5.1, NDGa and LR 7.1(D), NDGa. 
/s/ James W. Hawkins 
James W. Hawkins 
Counsel for Plaintiff  
 
Case 1:20-cv-03702-JPB   Document 1   Filed 09/08/20   Page 27 of 27

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