Motion for Preliminary Injunction - Brown et al. v. Azar et al.

Record facts

U.S. District Court for the Northern District of Georgia · No. 1:20-cv-03702-JPB · Doc. 14 · 2020-09-18 · 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, ET AL., 
: 
 
 
 
 
 
 
 
: 
CIVIL ACTION NO.: 
 
 
 
 
 
 
: 
1:20-cv-3702-WMR 
 
 
 
 
 
 
: 
Plaintiffs, 
 
:  
 
 
 
 
 
 
: 
 
 
v. 
 
 
 
:  
 
 
 
 
 
 
: 
SEC. ALEX AZAR, ET AL., 
 
: 
 
 
 
 
 
 
: 
 
 
 
Defendants.  
: 
 
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION   
 
 
Pursuant to Rule 65 of the Federal Rules of Civil Procedure, Plaintiffs Richard 
Lee (Rick) Brown, Jeffrey Rondeau, David Krausz, Sonya Jones and the National 
Apartment Association (NAA) move for 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, which suspended lawful residential evictions as applied to Plaintiffs.  
 
In support of their motion, Plaintiffs say as follows: 
1. 
Mr. Brown owns a residential property in Winchester VA. (Rick Brown Decl. 
at ¶ 3.) Mr. Brown has a mortgage on the property and makes monthly payments of 
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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 agreed 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. 
Mr. Rondeau owns a residential property in Vale, NC. (Jeff Rondeau Decl. at 
¶ 3.) Starting on May 1, 2019, he rented the property for a monthly rent of $1,000. 
(Jeff Rondeau Decl. at ¶ 5.) The lease was renewed in May 2020 and is currently in 
effect. (Jeff Rondeau Decl. at ¶ 5.) 
5. 
Mr. Rondeau’s tenant had a spotty payment history, typically filing rent 
significantly after its due date. (Jeff Rondeau Decl. at ¶ 7.) Finally, the tenant stopped 
paying altogether and has not paid any rent since July 6, 2020 and now owes more 
than $2,100 in rent and fees. (Jeff Rondeau Decl. at ¶ 7.) 
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6. 
On August 24, 2020 a North Carolina state judge granted ejectment and 
ordered a sheriff to serve a writ of possession removing the tenants from the 
property. (Jeff Rondeau Decl. at ¶ 8.) The eviction was set to take place on 
September 21, 2020. (Jeff Rondeau Decl. at ¶ 9.)  
7. 
Mr. Krausz owns a residential own a residential property in Columbia SC, 
which he leased to a tenant for a monthly rent of $700. (David Krausz Decl. at ¶ 3.)  
8. 
Mr. Krausz’s tenant fell behind on rent in July 2020, and now owes 
approximately $2265 in unpaid rent. (David Krausz Decl. at ¶ 4.) Under South 
Carolina law Mr. Krausz is entitled to seek an eviction for nonpayment of rent. 
(David Krausz Decl. at ¶ 13.) 
9. 
On September 11, 2020 Mr. Krausz requested a writ of ejectment from a South 
Carolina magistrate court, which is a process by which a sheriff evicts a tenant under 
South Carolina law. (David Krausz Decl. at ¶ 9.) 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. (David Krausz Decl. at ¶ 10.) 
10. 
Ms. Jones owns a residential property in Jesup, GA, which she leased to a 
tenant for a monthly rent of $450. (Sonya Jones Decl. at ¶ 3.) Ms. Jones has a 
currently effective lease agreement with her tenant. (Sonya Jones Decl. at ¶ 3.) 
11. 
Ms. Jones’ tenant has fallen behind on rent and now owes more than $1800 in 
unpaid rent. (Sonya Jones Decl. at ¶ 4.) The tenant also owes additional late fees. 
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(Sonya Jones Decl. at ¶ 4.) Under Georgia law Ms. Jones is entitled to seek an 
eviction for nonpayment of rent. (Sonya Jones Decl. at ¶ 4.) 
12. 
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 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.  
13. 
The Order said, “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.  
14. 
The Order applied to “covered persons” who attest that they meet five 
conditions. Id. at 55293.  
15. 
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. (Rick Brown Decl. at ¶ 7.) Mr. Brown is entitled to a writ of possession and a 
writ of eviction. (Rick Brown Decl. at ¶ 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.) Based on information provided by his tenant, Mr. Brown 
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believes that his tenant is a “covered person” under the CDC Order, and will provide 
a relevant affidavit if Mr. Brown initiates eviction procedures against her. (Rick 
Brown Decl. at ¶ 10.)  
16. 
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. (Rick Brown Decl. at ¶ 11.) 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 the CDC Order. (Rick Brown Decl. at ¶ 12.)  
17. 
Because of the CDC Order, Mr. Brown is suffering 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 judgment proof), and Mr. Brown will not be able to obtain any 
economic relief or damages from the tenant once the CDC Order expires at the end 
of December. (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.) 
18. 
Mr. Rondeau has complied with all legal obligations as a landlord, and his 
tenants had no other defense to eviction under North Carolina law. (Jeff Rondeau 
Decl. at ¶ 11.) On September 6, 2020, however, Mr. Rondeau’s tenants provided him 
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with an affidavit pursuant to the CDC Order. (Jeff Rondeau Decl. at ¶ 10.) The tenant 
declared under penalty of perjury that all conditions required for the CDC Order 
applied to them. (Jeff Rondeau Decl. at ¶ 10.) Mr. Rondeau intends to use legal 
means under North Carolina law to remove the tenants from the property 
notwithstanding the CDC Order purporting to halt state eviction proceedings. (Jeff 
Rondeau Decl. at ¶ 12.) 
19. 
Because of the CDC Order, Mr. Rondeau has also suffered significant 
economic damages, including $2100 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 $1000 per month. (Jeff Rondeau Decl. at 
¶ 13.) His tenant has also declared that she is insolvent, meaning that his only hope 
to mitigate his losses will be from ousting the tenant and renting the property to 
another tenant. (Jeff Rondeau Decl. at ¶ 13.) Mr. Rondeau also faces the very real 
possibility that if he is unable to evict his tenant and earn rent prior to the Order’s 
expiration in January 2021, he will be unable to meet his mortgage obligations and 
will lose his house in foreclosure. (Jeff Rondeau Decl. at ¶ 14.) 
20. 
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 
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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. 
(David Krausz Decl. at ¶ 11.) The South Carolina court then immediately stayed the 
eviction. (David Krausz Decl. at ¶ 12.) 
21. 
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. 
(David Krausz Decl. at ¶ 13.) Mr. Krausz is also entitled to regain possession of his 
property under South Carolina law. (David Krausz Decl. at ¶ 13.) 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. (David Krausz Decl. at ¶ 14.) The tenant is 
also likely insolvent, and Mr. Krausz will not likely be able to obtain any economic 
relief or damages from her. . (David Krausz Decl. at ¶ 14.) Mr. Krausz’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. (David Krausz 
Decl. at ¶ 14.) 
22. 
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. (Sonya Jones Decl. ¶ 5.) Ms. Jones’ tenant requested a hearing, which was 
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held on September 8, 2020. (Sonya Jones Decl. ¶ 6.) That was the first business day 
following the effective date of the CDC’s order. (Sonya Jones Decl. ¶ 6.) 
23. 
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. 
(Sonya Jones Decl. ¶ 7.) 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. (Sonya Jones Decl. ¶ 8.) 
24. 
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. (Sonya Jones 
Decl. ¶ 9.) She is also entitled to regain possession of the property under Georgia 
law. (Sonya Jones Decl. ¶ 9.) 
25. 
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. (Sonya Jones Decl. ¶ 
10.) The tenant is also insolvent, and Ms. Jones will not be able to obtain any 
economic relief or damages from him. (Sonya Jones Decl. ¶ 10.) Ms. Jones’ only 
opportunity to mitigate her loss will be from ousting the tenant who is in wrongful 
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possession of the premises and renting the property to another tenant. (Sonya Jones 
Decl. ¶ 10.) 
26. 
NAA is a trade association for owners and managers of rental housing that is 
comprised of over 85,185 members managing more than 10 million rental units 
throughout the United States. (Robert Pinnegar Decl. at ¶ 1.)  
27. 
NAA’s members have tenants in jurisdictions across the country in default of 
their leases for nonpayment of rent. (Robert Pinnegar Decl. at ¶¶ 4-5.) 
Overwhelmingly, these members are unable to access lawful eviction proceedings 
because of the CDC Order. (Robert Pinnegar Decl. at ¶¶ 2-3.) 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. 
(Robert Pinnegar Decl. at ¶¶ 4-5.) 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. (Robert Pinnegar Decl. at ¶¶ 4-5.) NAA members’ only 
opportunity to mitigate their losses will be from ousting their tenants who are in 
wrongful possession of the premises. (Robert Pinnegar Decl. at ¶¶ 4-5.) 
28. 
Plaintiffs are 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(2)(B), (C).  
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29. 
Plaintiffs are likely to succeed on a challenge to the CDC Order because it 
constitutes arbitrary and capricious agency action. See 5 U.S.C. § 706(2)(A).  
30. 
Plaintiffs are likely to succeed on a challenge to the CDC Order because it 
violates their right to access the courts. See Christopher v. Harbury, 536 U.S. 403, 
415 (2002).  
31. 
Plaintiffs 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.  
32. 
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.  
33. 
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.  
34. 
Plaintiffs have attested to the irreparable harm that they have suffered because 
of the Order, and an immediate ruling is necessary to prevent further harms. (Rick 
Brown Decl. at ¶ 14; Jeff Rondeau Decl. at ¶¶ 13-14; David Krausz Decl. at ¶14; 
Robert Pinnegar Decl. at ¶ 4-5.) 
WHEREFORE the Court should issue a preliminary injunction prohibiting 
Defendants from enforcing the CDC Order.  
September 18, 2020 
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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 14   Filed 09/18/20   Page 11 of 12

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/ Caleb Kruckenberg 
Caleb Kruckenberg 
Counsel for Plaintiffs  
 
CERTIFICATE OF SERVICE  
 
 
I hereby certify that on September 18, 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/ Caleb Kruckenberg 
Caleb Kruckenberg 
Counsel for Plaintiffs  
 
Case 1:20-cv-03702-JPB   Document 14   Filed 09/18/20   Page 12 of 12

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