Motion for Temporary Restraining Order — Brown v. Azar

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cv-03702-JPB · Doc. 6 · 2020-09-08 · Docket on CourtListener

Full text

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IN THE UNITED STATES DISTRICT COURT 
FOR THE NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION  
 
RICHARD LEE BROWN. 
 
: 
 
 
 
 
 
 
 
: 
CIVIL ACTION NO.:  
: 
1:20-cv-3702-WMR 
 
 
 
 
 
 
: 
 
 
 
 
 
 
 
: 
Plaintiff, 
 
:  
 
 
 
 
 
 
: 
 
 
v. 
 
 
 
:  
 
 
 
 
 
 
: 
SECRETARY ALEX AZAR, ET AL. : 
 
 
 
 
 
 
: 
 
 
 
Defendants.  
: 
 
PLAINTIFF’S MOTION FOR TEMPORARY RESTRAINING ORDER OR 
PRELIMINARY INJUNCTION   
 
 
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiff Richard 
Lee (Rick) Brown moves for a temporary restraining order or a preliminary 
injunction pending trial in this matter against Defendants, Secretary Alex Azar, U.S. 
Department of Health and Human Services, Acting Chief of Staff Nina B. 
Witkofsky, and U.S. Centers for Disease Control and Prevention (collectively 
“CDC”) vacating their September 1, 2020 Order suspending lawful evictions 
nationwide. 
 
In support of his motion, Plaintiff says as follows: 
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1. 
Mr. Brown owns a residential property at 325 Highland Ave Winchester VA 
22601 (“the property”). (Rick Brown Decl. at ¶ 3.1) Mr. Brown has a mortgage on 
the property and makes monthly payments of approximately $400 for the mortgage 
principal, interest and taxes. (Rick Brown Decl. at ¶ 4.) 
2. 
On April 1, 2017, Mr. Brown leased the property to a tenant, who agree to pay 
monthly rent of $925. (Rick Brown Decl. at ¶ 5.) The lease automatically renewed 
several times and is currently in effect. (Rick Brown Decl. at ¶ 5.) 
3. 
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. (Rick Brown Decl. at ¶ 6.) To date, the tenant owes $8,092 
in unpaid rent, and has made no payments at all to Mr. Brown for several months. 
(Rick Brown Decl. at ¶ 6.) 
4. 
On September 1, 2020, Defendant Acting Chief Witkofsky issued an order 
titled, “Temporary Halt in Residential Evictions to Prevent Further Spread of 
COVID-19.” The order became effective upon publication in the Federal Register, 
 
1 Mr. Brown’s declaration is attached hereto, marked as Exhibit A and incorporated 
by reference herein. 
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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.  
5. 
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. The order 
was effective upon publication until December 31, 2020, “unless extended.” Id. at 
55297. 
6. 
Mr. Brown has maintained the property in compliance with all legal 
obligations as a landlord, and the tenant has no defense to her nonpayment of rent. 
(Rick Brown Decl. at ¶ 7.) He is also entitled to a writ of possession and a writ of 
eviction. (Rick Brown Decl. at ¶ 7.) 
 
7. 
Mr. Brown now intends to seek eviction of his tenant for nonpayment of rent 
using legal process in Virginia state courts. (Rick Brown Decl. at ¶ 9.) 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. (Rick Brown Decl. at ¶ 11.) 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. (Rick Brown Decl. at ¶ 12.) Mr. Brown 
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continues to provide habitable premises to the tenant, and his tenant has no defense 
to eviction under Virginia law. (Rick Brown Decl. at ¶ 13.) 
8. 
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. (Rick Brown Decl. at ¶ 14.) The tenant is also insolvent, 
and Mr. Brown will not be able to obtain any economic relief or damages from the 
tenant. (Rick Brown Decl. at ¶ 14.) Mr. Brown’s only opportunity to mitigate his 
loss will be from ousting the tenant who is in wrongful possession of the premises 
and renting the property to another tenant. (Rick Brown Decl. at ¶ 14.) 
9. 
Mr. Brown is likely to succeed on a challenge to the CDC order because it 
was issued without a statutory or regulatory basis. See 5 U.S.C. §§ 706(B), (C).  
10. 
Mr. Brown is likely to succeed on a challenge to the CDC order because it 
violates his right to access the courts. See Christopher v. Harbury, 536 U.S. 403, 
415 (2002).  
11. 
Mr. Brown is likely to succeed on his challenge to the CDC order because it 
does not validly preempt state law. See Midatlantic National Bank v. New Jersey 
Department of Environmental Protection, 474 U.S. 494 (1986).  
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12. 
Mr. Brown is likely to succeed on his challenge to the CDC order because it 
violates the anticommandeering doctrine. See Murphy v. NCAA, 138 S. Ct. 1461, 
1476 (2018).  
13. 
Mr. Brown is likely to succeed on his challenge to the CDC order because it 
would constitute an improper delegation of legislative power. See U.S. Const. Art. 
I, § 1.  
14. 
Mr. Brown is likely to succeed on his challenge to the CDC order because it 
improperly dispenses with state eviction laws. 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.  
15. 
Mr. Brown will suffer irreparable harm by suffering constitutional violations 
that cannot be remedied as well as financial harms through lost business 
opportunities that cannot be recovered from the tenant or the defendants.  
16. 
The balance of equities weighs heavily in favor of an injunction or temporary 
restraining order because it is the public interest to ensure the CDC complies with 
constitutional and statutory limits.  
17. 
Notice should not be required prior to enjoining Defendants because the CDC 
order is unlawful and had immediate nationwide effect.  
18. 
CDC’s order purports to void the substantive law of every state and locality 
in the United States, and an immediate ruling is necessary to preserve the status quo.  
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19. 
Mr. Brown has attested to the irreparable harm that he has suffered because 
of the order, and an immediate ruling is necessary to prevent further harms. (Rick 
Brown Decl. at ¶ 14.) 
20. 
Counsel for Mr. Brown has sent copies of the Complaint, motion and 
accompanying memorandum of law by FedEx overnight to all Defendants, by email 
and overnight courier to the United States Attorney for the Northern District of 
Georgia and by email and overnight courier to the United States Attorney General. 
WHEREFORE the Court should issue a preliminary injunction or temporary 
restraining order prohibiting defendants from enforcing the CDC order.  
 
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 
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Washington, DC 20036  
caleb.kruckenberg@ncla.legal 
(202) 869-5210 
Motion to Appear Pro Hac Vice 
Forthcoming 
Counsel for Plaintiff 
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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  
 
CERTIFICATE OF SERVICE  
 
 
I hereby certify that on September 8, 2020, I electronically filed the 
foregoing with the Clerk of Court using the CM/ECF system which sent 
notification of such filing to all counsel of record. 
 
/s/ James W. Hawkins 
James W. Hawkins 
Counsel for Plaintiff  
 
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Exhibit A 
 
 
 
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