Amended Complaint — Brown v. Azar

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cv-03702-JPB · Doc. 12 · 2020-09-18 · Docket on CourtListener

Full text

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 
& 
 
 
 
: 
AMENDED COMPLAINT 
 
 
 
 
 
 
: 
JEFFREY RONDEAU,  
 
: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
: 
DAVID KRAUSZ, 
 
 
: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
 
 
: 
SONYA JONES,  
 
 
: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
 
 
 
 
 
 
: 
NATIONAL APARTMENT  
 
: 
ASSOCIATION,  
 
 
: 
 
 
 
: 
Plaintiffs, 
 
: 
 
 
 
 
 
 
: 
 
 
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: 
 
 
 
 
 
 
: 
 
 
& 
 
 
 
: 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 1 of 38

2 
 
 
 
 
 
 
 
: 
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.  
: 
 
AMENDED COMPLAINT 
 
 
When Plaintiffs Richard Lee (Rick) Brown, Jeffrey Rondeau, David Krausz 
and Sonya Jones and the members of Plaintiff National Apartment Association 
(NAA) rented their respective properties, they expected that their tenants would 
uphold their end of the contract and pay their rent. They also expected, if the tenants 
did not, that they could resort to the law and court system to evict their tenants so 
that they could regain possession of their property and let it to tenants who would 
pay rent.  
 
Plaintiffs upheld their end of the bargain. They provided a habitable home to 
their tenants and continue to pay for maintenance, utilities and other expenses. When 
their tenants breached their agreement, Plaintiffs should have been able to follow the 
lawful processes laid down by state law for retaking possession of their homes.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 2 of 38

3 
 
 
Plaintiffs 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. 
PARTIES 
1. 
Plaintiff Richard Lee (Rick) Brown is a natural person and a resident of the 
Commonwealth of Virginia.  
2. 
Plaintiff Jeffrey Rondeau is a natural person and resident of the State of New 
Jersey.  
3. 
Plaintiff David Krausz is a natural person and resident of the State of South 
Carolina.  
4. 
Plaintiff Sonya Jones is a natural person and resident of the State of Georgia.  
5. 
Plaintiff National Apartment Association is a trade association for owners 
and managers of rental housing that is comprised of 157 state and local affiliated 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 3 of 38

4 
 
apartment associations, and over 82,600 members managing more than 9.7 million 
rental homes throughout the United States, Canada, and the United Kingdom. 
6. 
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.  
7. 
Defendant HHS is an agency of the United States.  
8. 
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.  
9. 
Defendant CDC is an agency of the United States located within HHS and 
headquartered in Atlanta, Georgia.  
JURISDICTION AND VENUE 
10. 
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.  
11. 
This Court has the authority to grant declaratory and injunctive relief in this 
matter pursuant to 28 U.S.C. §§ 2201 and 2202.  
12. 
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 
substantial part of the events or omissions giving rise to the claim occurred in this 
judicial district.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 4 of 38

5 
 
STATEMENT OF FACTS 
13. 
Plaintiff Rick Brown owns a residential property in Winchester, VA. 
14. 
Mr. Brown has a mortgage on the property and makes monthly payments of 
approximately $400 for the mortgage principal, interest and taxes. 
 
15. 
On April 1, 2017, Mr. Brown leased the property to a tenant, who agreed to 
pay monthly rent of $925.  
16. 
The lease automatically renewed several times and is currently in effect.  
17. 
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.  
18. 
To date, the tenant owes $8,092 in unpaid rent, and has made no payments at 
all to Mr. Brown for several months. 
19. 
Plaintiff Jeffrey Rondeau owns a residential property in Vale, NC. He 
intends to use this property as his home once he retires.   
20. 
Mr. Rondeau has a mortgage on the property and makes monthly payments 
of approximately $880 for the mortgage principal, interest and taxes. He pays a 
property management company 10% of the monthly rent ($100) to collect rent 
from the property.   
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 5 of 38

6 
 
21. 
On May 1, 2019, Mr. Rondeau leased the property to tenant, who agreed to 
pay monthly rent of $1,000. Mr. Rondeau and his tenant renewed their lease as of 
May 1, 2020, for a term of one year. 
22. 
Mr. Rondeau’s tenants have had a spotty payment history, typically filing 
rent significantly after its due date. The tenants stopped paying altogether and have 
not paid any rent since July 6, 2020.  
23. 
The tenants of Mr. Rondeau’s property have fallen behind on rent, and 
asserted to Mr. Rondeau that they are unable to pay because of economic stress 
arising from the COVID-19 pandemic, have used best efforts to obtain available 
government assistance and otherwise pay rent, have no other home to go to, and 
are making less than $99,000 annually.  
24. 
To date, the tenants owe more than $2,100 in unpaid rent and fees and has 
made no payments at all to Mr. Rondeau for several months. 
25. 
Plaintiff David Krausz owns a residential own a residential property in 
Columbia SC, which he leased to a tenant for a monthly rent of $700.  
26. 
Mr. Krausz has a currently effective lease agreement with the tenant.  
27. 
Mr. Krausz’s tenant fell behind on rent in July 2020, and now owes 
approximately $2265 in unpaid rent. Under South Carolina law Mr. Krausz is 
entitled to seek an eviction for nonpayment of rent. 
28. 
Plaintiff Sonya Jones owns a residential property in Jesup, GA. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 6 of 38

7 
 
29. 
Ms. Jones leased the property to a tenant for a monthly rent of $450.  
30. 
Ms. Jones has a currently effective lease agreement with her tenant.  
31. 
Ms. Jones’ tenant has fallen behind on rent and now owes more than $1800 
in unpaid rent. The tenant also owes additional late fees. Under Georgia law Ms. 
Jones is entitled to seek an eviction for nonpayment of rent. 
32. 
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 
limited and temporary moratorium on evictions for certain types of federally-
backed housing that expired on July 24, 2020.   
33. 
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.  
34. 
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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 7 of 38

8 
 
apply to writs of eviction in unlawful detainer actions that are unrelated to the 
failure to pay rent.” Id. at 2.  
35. 
On May 30, 2020, Chief Justice Cheri Beasley of the North Carolina 
Supreme Court issued emergency directive 17, which stayed all pending eviction 
proceedings until June 21, 2020, and declared that “Sheriffs shall not be required to 
execute pending writs of possession of real property or make due return of such 
writs until 30 June 2020.” Emergency Directives 17-9, Order of the Chief Justice 
of the Supreme Court of North Carolina (N.C. May 30, 2020), available at 
https://www.nccourts.gov/assets/news-uploads/30%20May%202020%207A-
39%28b%29%282%29%20Order.pdf?v6tK3XJVqgOY0Ps80nAcS6s5ghD2XLeU. 
36. 
North Carolina Governor Roy Blunt issued Executive Order No. 142 on 
May 30, 2020, which supplemented Chief Justice Beasley’s directive and 
prohibited residential landlords from evicting tenants for late or nonpayment 
through July 20, 2020. Assisting North Carolinians by Placing Temporary 
Prohibitions on Evictions and Extending the Prohibition on Utility Shut-Offs, State 
of North Carolina Executive Order No. 142 (N.C. May 30, 2020), available at  
https://files.nc.gov/governor/documents/files/EO142-Temp-Prohibitions-on-
Evictions-and-Extending-Prohibition-on-Utility-Shut-Offs.pdf.  
37. 
On March 17, 2020 the Supreme Court of South Carolina stayed all 
evictions proceedings in the state until May 1, 2020. RE: Statewide Evictions, 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 8 of 38

9 
 
Order of the Chief Justice of the Supreme Court of South Carolina (N.C. Mar. 17, 
2020) available at 
https://www.sccourts.org/courtOrders/displayOrder.cfm?orderNo=2020-03-17-02.  
38. 
On September 1, 2020, Defendant Acting Chief Witkofsky issued an order 
titled, “Temporary Halt in Residential Evictions to Prevent Further Spread of 
COVID-19.”  
39. 
The CDC 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.  
40. 
The CDC 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. 
41. 
The CDC Order was not effective so long as a local jurisdiction applied 
similar eviction restrictions. Id.  
42. 
The CDC 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 9 of 38

10 
 
covered person from a residential property. This does not include foreclosure on a 
home mortgage.” Id. at 55293.  
43. 
The CDC 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.  
44. 
The CDC Order was effective upon publication until December 31, 2020, 
“unless extended.” Id. at 55297. 
45. 
Mr. Brown has maintained the property in compliance with all legal 
obligations as landlord, and the tenant has no other defense to her nonpayment of 
rent.  
46. 
Mr. Brown is entitled to a writ of possession and a writ of eviction. 
 
47. 
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.  
48. 
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. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 10 of 38

11 
 
49. 
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. 
50. 
Mr. Brown now intends to seek eviction of his tenant for nonpayment of rent 
using legal process in Virginia state courts.  
51. 
Upon information and belief, Mr. Brown’s tenant is a “covered person” 
under the CDC Order.  
52. 
Mr. Brown intends to violate the CDC Order through lawful processes under 
Virginia law by seeking an eviction order, and having a sheriff forcibly remove his 
tenant from the property.  
53. 
Mr. Brown intends to violate the CDC Order even if his tenant presents an 
attestation in eviction proceedings that she is a “covered person” as defined in the 
CDC Order.  
54. 
Mr. Brown continues to provide habitable premises to the tenant, and his 
tenant has no other defense to eviction under Virginia law.  
55. 
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.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 11 of 38

12 
 
56. 
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. 
57. 
Mr. Brown’s only opportunity to mitigate his loss will be from ousting the 
tenant who is in wrongful possession of the premises.  
58. 
Mr. Rondeau is entitled to a writ of possession and a writ of ejectment. 
 
59. 
On August 17, 2020, Mr. Rondeau filed for a summary ejectment in North 
Carolina state court. One week later, on August 24, a state judge granted ejectment 
and ordered a sheriff to serve a writ of possession removing the tenants from the 
property.   
60. 
Mr. Rondeau’s writ of ejectment became final and unappealable on 
September 3, 2020. But, on September 6, 2020, Mr. Rondeau’s tenant provided 
him with a signed affidavit consistent with the CDC Order. 
61. 
On September 14, 2020, Mr. Rondeau requested a writ of possession. The 
eviction is currently scheduled for September 21, 2020, at 9:00 a.m. 
62. 
Mr. Rondeau intends to violate the CDC Order through lawful processes 
under North Carolina law by seeking an eviction order, and having a sheriff 
forcibly remove his tenants from the property.  
63. 
Mr. Rondeau continues to provide habitable premises to the tenants, and his 
tenants have no other defense to eviction under North Carolina law.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 12 of 38

13 
 
64. 
Because of the CDC Order, Mr. Rondeau suffers significant economic 
damages, including $2,100 in unpaid rent and fees, 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 $1,000 per month.  
65. 
If Mr. Rondeau is unable to earn any rent on his property before January 
2021 he faces a likelihood of being unable to pay the mortgage on the property and 
is at risk of foreclosure. 
66. 
The tenant is also likely insolvent (and judgment proof), and Mr. Rondeau 
will be unlikely to obtain any economic relief or damages from the tenant once the 
CDC Order expires at the end of December. 
67. 
Mr. Rondeau’s only opportunity to mitigate his loss will be from ousting the 
tenant who is in wrongful possession of the premises.  
68. 
On July 7, 2020, Mr. Krausz filed an Application for Ejectment to initiate 
the legal eviction process under South Carolina law.  
69. 
Mr. Krausz’s tenant requested a hearing, which was held on July 30, 2020.  
70. 
At the hearing Mr. Krausz and his tenant entered into a consent agreement 
where the tenant would have 4 days to pay $700 towards past due rent, and then 
was required to pay an additional $2265 in unpaid rent by August 31, 2020. The 
tenant agreed to waive their right to an additional hearing. If the tenant breached 
the agreement, which was accepted by the court, then Mr. Krausz was entitled to 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 13 of 38

14 
 
request the court issue a Writ of Ejectment immediately without any further 
hearings on the matter.  
71. 
Mr. Krausz’s tenant paid $700 for July’s rent as agreed but failed to pay any 
portion of the outstanding $2265.  
72. 
On September 11, 2020 Mr. Krausz requested service of a writ of ejectment 
from the magistrate court, which is a process by which a sheriff evicts a tenant 
under South Carolina law.  
73. 
The writ was granted, and the Richland County South Carolina Sheriff’s 
Department scheduled an eviction of Mr. Krausz’s tenant for September 21, 2020.  
74. 
On September 16, 2020, Mr. Krausz’s tenant provided the South Carolina 
court with a declaration consistent with the CDC Order, declaring that the tenant 
was unable to pay rent because of economic stress arising from the COVID-19 
pandemic, had used best efforts to obtain available government assistance and was 
using best efforts to make timely partial payments that are as close to the full 
payment as possible, had no other home to go to, and was making less than 
$99,000 annually. 
75. 
The South Carolina court then immediately stayed the eviction.  
76. 
Mr. Krausz has maintained his property in compliance with all legal 
obligations as a landlord, and his tenant has no defense for her nonpayment of rent. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 14 of 38

15 
 
Mr. Krausz is also entitled to regain possession of his property under South 
Carolina law. 
77. 
Because of the CDC Order, Mr. Krausz has incurred significant economic 
damages, including approximately $2,265 in unpaid rent and fees, 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 $700 per month. The tenant 
appears to be insolvent, and Mr. Krausz will likely not be able to obtain any 
economic relief or damages from her. Mr. Krausz’s only opportunity to mitigate 
my loss will be from ousting the tenant who is in wrongful possession of the 
premises and renting the property to another tenant.  
78. 
On August 24, 2020 Ms. Jones filed and served a dispossessory affidavit on 
her tenant consistent with Georgia law, which directed her tenant to vacate the 
property.  
79. 
Ms. Jones’ tenant requested a hearing, which was held on September 8, 
2020. That was the first business day following the effective date of the CDC’s 
order.   
80. 
At the hearing Ms. Jones’ tenant said that his challenge to the eviction was 
related to the COVID-19 pandemic, and the court continued all proceedings until 
January 2021 in purported compliance with CDC’s eviction moratorium order.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 15 of 38

16 
 
81. 
Based on information provided to Ms. Jones by her tenant, and the tenant’s 
representations in court, Ms. Jones’ tenant is a “covered person” as defined by the 
CDC order. 
82. 
Ms. Jones maintained her property in compliance with all legal obligations 
as a landlord, and the tenant has no defense for their nonpayment of rent. She is 
also entitled to regain possession of the property under Georgia law. 
83. 
Because of the CDC Order, Ms. Jones has incurred significant economic 
damages, including approximately $1,800 in unpaid rent and fees, as well as 
monthly maintenance costs, damages to the property and the lost opportunity to 
rent or use the property at fair market value of at least $450 per month.  
84. 
The tenant is also insolvent, and Ms. Jones will not be able to obtain any 
economic relief or damages from him.  
85. 
Ms. Jones’ only opportunity to mitigate my loss will be from ousting the 
tenant who is in wrongful possession of the premises and renting the property to 
another tenant.  
86. 
NAA is a trade association for owners and managers of rental housing that is 
comprised of 157 state and local affiliated apartment associations, and over 85,485 
members managing more than 10 million rental units throughout the United States. 
NAA has members in all 50 states.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 16 of 38

17 
 
87. 
NAA has members throughout the United States who are entitled to writs of 
possession and eviction in states without eviction moratoria. 
88. 
NAA’s members continue to provide habitable premises to their tenants, but 
have been order by CDC not to utilize existing state law procedures for evicting 
tenants for nonpayment of rent when presented with a form affidavit.  
89. 
Because of the CDC Order, NAA’s members have suffered significant 
economic damages, including unpaid rent and fees, as well as monthly 
maintenance costs, damages to their property and the lost opportunity to rent or use 
their properties at fair market value.  
90. 
NAA’s members will be unlikely to obtain any economic relief or damages 
from their tenants once the CDC Order expires at the end of December because, by 
definition, any tenant presenting an appropriate attestation will be insolvent.  
91. 
NAA’s members will lose millions of dollars in uncollected rents, while 
expending huge sums for maintenance and costs. Many of NAA’s member 
businesses are unlikely to recover from the economic stress caused by the CDC 
Order. 
92. 
NAA members’ only opportunity to mitigate their losses will be from 
ousting their tenants who are in wrongful possession of the premises.
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 17 of 38

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 
 
93. 
Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
94. 
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). 
95. 
The CDC 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.” 
96. 
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.  
97. 
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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 18 of 38

19 
 
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.” 
98. 
The CDC 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. 
99. 
The CDC Order only applies to States, local, territorial, or tribal areas that 
do not have “a moratorium on residential evictions that provides the same or 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 19 of 38

20 
 
greater level of public-health protection than the requirements listed in this Order.” 
85 Fed. Reg. at 55292. 
100. The CDC 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 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. 
101. The CDC 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. 
102. 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. 
103. Agencies have no inherent power to make law. See Loving v. United States, 
517 U.S. 748, 758 (1996) (“[T]he lawmaking function belongs to Congress … and 
may not be conveyed to another branch or entity.”). This limitation is a 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 20 of 38

21 
 
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). 
104. Nothing in the relevant statutes or regulations purports to give CDC the 
power or authority to issue an eviction-moratorium order.  
105. Nothing in the relevant statutes or regulations purports to give CDC the 
power or authority to criminalize otherwise lawful behavior. 
106. The Order was issued in excess of any statutory authority and is therefore 
invalid. 
WHEREFORE, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
COUNT II: ARBITRARY AND CAPRICIOUS AGENCY ACTION IN 
VIOLATION OF THE ADMINISTRATIVE PROCEDURE ACT, 5 U.S.C. § 
706(2)(A)—THE ORDER IS NOT SUPPORTED BY A RATIONAL 
DETERMINATION DRAWN FROM SUBSTANTIAL EVIDENCE 
 
107. Plaintiffs incorporates by reference all of the preceding material as though 
fully set forth herein. 
108. Under the Administrative Procedure Act, a court must set aside “arbitrary 
and capricious” agency action. 5 U.S.C. § 706(2)(A).   
109. The CDC Order fails the arbitrary and capricious standard because it is not 
supported by a rational determination drawn from substantial evidence.   
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 21 of 38

22 
 
110. CDC has not met its baseline obligation of showing that local jurisdictions 
are taking “insufficient” measures to prevent the spread of COVID-19, as required 
when CDC acts under the authority purportedly granted by 42 C.F.R. § 70.2 
(granting authority to CDC when the agency “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[.]”).  
111. CDC has also failed to catalogue the efforts taken by any jurisdiction to 
combat COVID-19; or explain why allowing eviction proceedings, more than any 
other purported lacuna in prevention strategies, represents the line that states may 
not cross; or cite any evidence that any infection has arisen because of an eviction 
proceeding. 
112. CDC’s secondary conclusion, that an eviction moratorium is “necessary” to 
stop the spread of COVID-19 is unsupported by substantial evidence.  
113. In fact, CDC is careful never to actually say that the moratorium is 
necessary—the best it says is that “[i]n the context of a pandemic, eviction 
moratoria—like quarantine, isolation, and social distancing—can be an effective 
public health measure utilized to prevent the spread of communicable disease.” 85 
Fed. Reg. at 55294. But even this tepid statement has no real evidentiary support. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 22 of 38

23 
 
114. Instead, CDC relies on hyperbolic reasoning—saying that “mass evictions” 
and “homelessness” might increase the likelihood of COVID-19, and thus that that 
the only appropriate course of action is to halt evictions nationwide. See 85 Fed. 
Reg. at 55294-96. CDC does not explain sufficiently why this would be so or why 
other remedial measures are inadequate. See Perez-Zenteno v. U.S. Att’y Gen., 913 
F.3d 1301, 1306 (11th Cir. 2019) (ruling that an agency decision must be 
“supported by reasonable, substantial, and probative evidence on the record 
considered as a whole”).  
115. CDC also does not explain why other remedial measures are inadequate. 
116. The evidence on which CDC relies fails to support CDC’s Order, and it is 
thus arbitrary and capricious.   
WHEREFORE, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
COUNT III: VIOLATION OF THE RIGHT OF ACCESS TO COURTS 
UNDER THE U.S. CONSTITUTION—THE ORDER UNLAWFULLY 
DENIED PLAINTIFFS ACCESS TO THE ONLY LAWFUL MEANS OF 
EVICTING A DELINQUENT TENANT  
 
117. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
118. 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 23 of 38

24 
 
constitutional right of access to courts. Christopher v. Harbury, 536 U.S. 403, 415, 
415 n.12 (2002). 
119. No state actor may systemically frustrate a plaintiff “in preparing and filing 
suits” by foreclosing a particular type of relief. Id. at 413.  
120. 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-
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). 
121. Similarly, North Carolina courts provide a landlord’s sole means of eviction 
and regaining possession of his or her property from a tenant who has breached a 
lease: “It is the public policy of the State of North Carolina, in order to maintain 
the public peace, that a residential tenant shall be evicted, dispossessed or 
otherwise constructively or actually removed from his dwelling unit only in 
accordance with the procedure prescribed in Article 3 or Article 7 of this Chapter.”  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 24 of 38

25 
 
N.C. Gen. Stat. § 42-25.6; see also id. § 1-313 (“The execution must be directed to 
the sheriff[.]”). 
122. In South Carolina a landlord must also utilize a court eviction process, and 
obtain a writ of ejectment from a judge. See S.C. Code § 27-40-710. The writ must 
be executed by a state official, and a landlord may not attempt to evict a tenant 
through self-help. S.C. Code § 27-40-760. A landlord is also liable to a tenant for 
the greater of three months’ rent or twice actual damages for an unlawful ouster if 
he attempts to evict a tenant outside the court process. S.C. Code § 27-40-660.  
123. Georgia also requires residential landlords to use court eviction proceedings, 
and only permits eviction by a sheriff, constable or marshal’s execution of a writ of 
possession. See Ga. Code § 44-7-55(d). Without being issued such a writ, a 
landlord may not retake possession of her residential property. See id. A landlord 
who resorts to self-help evictions faces criminal punishment. See Ga. Code § 44-7-
14.1 (“Unlawful to suspend furnishing of utilities to tenant until final disposition of 
dispossessory proceeding.”).  
124. Indeed, in a majority of jurisdictions across the United States residential 
landlords must follow utilize state eviction proceedings before lawfully ousting 
tenants for nonpayment of rent.  
125. Plaintiffs are entitled to obtain a writs pursuant to state law to regain 
possession of their properties for nonpayment of rent.  
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 25 of 38

26 
 
126. Plaintiffs’ tenants currently owe unpaid rent and have no defenses in state 
court other than the CDC Order.  
127. By operation of the CDC Order, Plaintiffs are unable to obtain writs of 
eviction pursuant to the legal processes set out by their respective state laws  
128. Plaintiffs have no ability to legally oust their tenants for nonpayment of rent.  
WHEREFORE, Plaintiffs demand 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—THE CDC EVICTION-MORATORIUM ORDER CANNOT BE 
THE SUPREME LAW OF THE LAND BECAUSE IT IS NOT A LAW 
ADOPTED PURSUANT TO THE CONSTITUTION 
 
129. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
130. 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.” 
131. The Supremacy Clause grants “supreme” status only to the “Laws of the 
United States.” Id. (emphasis added). 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 26 of 38

27 
 
132. “[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). 
133. “[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). 
134. 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). 
135. The conditional nature of the Supremacy Clause accords supremacy to 
federal statutes or regulations made “in Pursuance of” the Constitution.  
136. CDC has not identified any act of Congress that confers upon it the power to 
impose a halt on residential evictions. 
137. 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. 
138. 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 applied only to certain federally-backed 
housing.   
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 27 of 38

28 
 
139. The weaker the link between relevant federal statutes and CDC’s Order, the 
weaker is CDC’s ability to invoke the Supremacy Clause to deprive Plaintiffs of 
their right to state-court eviction process.  
 
WHEREFORE, Plaintiffs demand 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 SUPREMACY 
CLAUSE AND TENTH AMENDMENT—THE CDC EVICTION-
MORATORIUM ORDER DOES NOT VALIDLY PREEMPT STATE LAW 
 
140. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
141. 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.” 
142. 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.” 
143. The relevant statute, 42 U.S.C. § 264(a), authorizes CDC only to make and 
enforce regulations that “provide for such inspection, fumigation, disinfection, 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 28 of 38

29 
 
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.”  
144. The relevant regulation, 42 C.F.R. § 70.2, also authorizes CDC only 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.”  
145. Nothing in the relevant statutes or regulations purports to give CDC the 
authority to order an eviction moratorium that preempts state landlord-tenant law. 
146. 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. 
147. 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 29 of 38

30 
 
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.  
148. 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 
exercise of Federal authority under this section or section 266 of this title.” 42 
U.S.C. § 264(e).  
149. 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 Order that would supersede state 
landlord-tenant law, or state laws relating to non-impairment of contracts.  
150. 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 30 of 38

31 
 
articles found to be so infected or contaminated as to be sources of dangerous 
infection to human beings.” 42 U.S.C. § 264(a). 
151. 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. 
WHEREFORE, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
COUNT VI: VIOLATION OF U.S. CONSTITUTION’S TENTH 
AMENDMENT—THE CDC EVICTION-MORATORIUM ORDER 
UNCONSTITUTIONALLY COMMANDEERS STATE RESOURCES AND 
STATE OFFICERS TO ACHIEVE FEDERAL POLICY OBJECTIVES OR 
EXECUTE FEDERAL LAWS 
 
152. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
153. 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.” 
154. 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 Order impermissibly 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 31 of 38

32 
 
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). 
155. CDC cannot order state courts and relevant state actors not to process 
summary evictions. Landlords, like Plaintiffs, who rely on state process, run the 
risk of a federal prosecution for doing so. Plaintiffs run 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. 
156. 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, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
COUNT VII: VIOLATION OF U.S. CONSTITUTION ART I, § 1—THE 
CDC ORDER IS AN INVALID EXERCISE OF LEGISLATIVE POWER  
 
157. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 32 of 38

33 
 
158. 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 that 
Congress may not divest “powers which are strictly and exclusively legislative.” 
Wayman v. Southard, 23 U.S. 1, 42-43 (1825). 
159. 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.  
160. 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. 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 33 of 38

34 
 
161. 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.  
162. As interpreted by the CDC 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. 
163. 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. 
164. Because § 264(a) is unconstitutional as applied here, CDC lacks any 
statutory authority to adopt the Order.  
WHEREFORE, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
COUNT VIII: UNLAWFUL SUSPENSION OF LAW—NEITHER 
STATUTE NOR CONSTITUTION AUTHORIZES CDC TO WAIVE, 
DISPENSE WITH, OR SUSPEND STATE EVICTION LAWS  
 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 34 of 38

35 
 
165. Plaintiffs incorporate by reference all of the preceding material as though 
fully set forth herein. 
166. Evictions and the laws governing when and under what circumstances a 
property owner can regain possession of his or her property 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 York legislature’s authority to enact 
emergency housing laws under the state’s police power). In Virginia and North 
Carolina, like most other states, 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.; N.C. Gen. Stat. §§ 
1-313, 42-1 et seq.  
167. CDC’s Order purports to waive or suspend the duly enacted laws that govern 
evictions in the several states.   
168. 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 35 of 38

36 
 
repeal, or abolish, or suspend the whole body of them[.]”) (quoting Luther v. 
Borden, 48 U.S. 1, 69 (1849) (Woodbury, J., dissenting)). 
169. To the contrary, the United States Constitution forbids the Executive Branch 
from suspending the law.   
170. 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-
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.   
171. 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 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 36 of 38

37 
 
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. 
172. 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 executive] 
had legislative authorization.” Hamburger, Beyond Protection, 109 COLUM. L. 
REV. at 1919. 
173. 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.”  
174. With no applicable grant of statutory authority to suspend laws, CDC has no 
authority to do anything with respect to the several states’ 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.”).   
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 37 of 38

38 
 
175. Because CDC could not lawfully waive the application of state laws 
governing evictions, the Order is void ab initio and must fail. 
WHEREFORE, Plaintiffs demand judgment against CDC invalidating CDC’s 
Eviction-Moratorium Order and any other relief that may be appropriate. 
September 18, 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 
Admitted Pro Hac Vice  
Counsel for Plaintiffs 
 
Case 1:20-cv-03702-JPB   Document 12   Filed 09/18/20   Page 38 of 38

File and source

File

gov.uscourts.gand.280996.12.0.pdf

Size

287,642 bytes

SHA-256

a08ed8aac78913b894fc4ccf27f89935c62279194cc5086ed419e7958ef651ea

Our copy

gov.uscourts.gand.280996.12.0.pdf

Original

archive.org