Order Denying Motion for Preliminary Injunction — Brown v. Azar

Record facts

UNITED STATES DISTRICT COURT · No. 1:20-cv-03702-JPB · Doc. 48 · 2020-10-29 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF GEORGIA 
ATLANTA DIVISION 
 
RICHARD LEE BROWN, et al., 
 
 
 
 
Plaintiffs, 
 
 
 
v. 
       CIVIL ACTION NO. 
       1:20-CV-03702-JPB 
ALEX AZAR, in his official capacity 
as Secretary, U.S. Department of 
Health & Human Services, et al., 
 
 
 
 
Defendants. 
 
 
ORDER  
 
This matter is before the Court on Richard Lee Brown, Jeffrey Rondeau, 
David Krausz, Sonya Jones and the National Apartment Association’s (“NAA”) 
(collectively, “Plaintiffs”) Motion for Preliminary Injunction.  [Doc. 18].  This 
Court finds as follows:   
FACTS AND PROCEDURAL HISTORY 
“It would be a colossal understatement to say that the COVID-19 pandemic 
has had far-reaching effects.  It has changed everything from the way that friends 
and families interact to the way that businesses and schools operate to the way that 
courts hear and decide cases.”  Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 
2020).  As a result of the pandemic, “Federal, State, and local governments have 
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taken unprecedented or exceedingly rare actions, including border closures, 
restrictions on travel, stay-at-home orders, mask requirements, and eviction 
moratoria.”  Temporary Halt in Residential Evictions to Prevent the Further Spread 
of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020).  This case involves one of 
those measures—eviction moratoria for certain qualifying individuals.   
On September 4, 2020, the Centers for Disease Control and Prevention 
(“CDC”), a division of the Department of Health and Human Services (“HHS”), 
implemented a temporary eviction moratorium to prevent the further spread of 
COVID-19 (the “Order”).  Id.  While the Order is in place (September 4, 2020, 
through December 31, 2020, unless extended, modified or rescinded), landlords are 
prohibited from evicting a covered person from a residential property for the non-
payment of rent.  Id. at 55,292, 55,297.  To qualify as a covered person, the 
individual tenant must provide a declaration to their landlord under penalty of 
perjury indicating that:  (1) “[t]he individual has used best efforts to obtain all 
available government assistance for rent or housing”; (2) the individual satisfies 
certain income requirements; (3) “the individual is unable to pay the full rent or 
make a full housing payment due to substantial loss of household income, loss of 
compensable hours of work or wages, a lay-off, or extraordinary out-of-pocket 
medical expenses”; (4) “the individual is using best efforts to make timely partial 
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payments that are as close to the full payment as the individual’s circumstances 
may permit, taking into account other nondiscretionary expenses”; and (5) 
“eviction would likely render the individual homeless—or force the individual to 
move into and live in close quarters in a new congregate or shared living setting—
because the individual has no other available housing options.”  Id. at 55,293.   
While the Order temporarily prohibits evictions of covered persons, the 
Order makes clear that it “does not relieve any individual of any obligation to pay 
rent, make a housing payment, or comply with any other obligation that the 
individual may have under a tenancy, lease, or similar contract.”  Id. at 55,294.  
The Order explicitly provides that the landlord is not precluded from charging or 
collecting fees, penalties or interest as a result of the failure to pay rent on a timely 
basis.  Id.  Moreover, nothing in the Order prevents evictions based on the tenant:   
(1) [e]ngaging in criminal activity while on the premises; (2) 
threatening the health or safety of other residents; (3) damaging or 
posing an immediate and significant risk of damage to property; (4) 
violating any applicable building code, health ordinance or other 
similar regulation relating to health and safety; or (5) violating any 
other contractual obligation, other than the timely payment of rent or 
similar housing-related payment.   
 
Id. 
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Except for Plaintiff NAA,1 Plaintiffs are landlords seeking to evict their 
tenants for the non-payment of rent.  Each of the individual plaintiffs supplied 
affidavits in support of the Motion for Preliminary Injunction.  [Docs. 18-2, 18-3, 
18-4 and 18-5].  Plaintiff Brown, according to his affidavit, owns a rental property 
in Virginia and is currently leasing it to a tenant for $925.00 per month.  [Doc. 18-
2, pp. 1-2].  Plaintiff Brown asserts that his tenant has not made payments for the 
past several months, and that if he initiates eviction proceedings against her, she 
will provide a declaration indicating that she is a covered person under the Order.  
Id. at 2-3.  Plaintiff Brown concludes his affidavit by stating that his tenant is 
insolvent, and he will not be able to obtain any economic relief or damages from 
her.  Id. at 3.   
Similarly, Plaintiff Rondeau owns a rental property in Vale, North Carolina.  
[Doc. 18-3, p. 1].  Plaintiff Rondeau’s property is currently leased to a tenant at a 
rate of $1,000.00 per month.  Id.  When Plaintiff Rondeau’s tenant fell behind on 
her rental payments, Plaintiff Rondeau secured a writ of possession, and the 
Sheriff’s Department scheduled the eviction for September 21, 2020.  Id.  The 
 
1 Plaintiff NAA, which has members in every state, is a trade association for owners and 
managers of rental housing.  [Doc. 12, p. 3].  Plaintiff NAA is comprised of 157 state and 
locally affiliated apartment associations and over 85,485 members managing more than 
ten million rental units throughout the United States.  Id. at 3-4.       
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eviction, however, did not proceed because the tenant provided Plaintiff Rondeau 
with a declaration indicating that she is a covered person under the Order.  Id. at 1-
2.  Like Plaintiff Brown, Plaintiff Rondeau concludes his affidavit by stating that 
the tenant is insolvent, and he will not be able to obtain any economic relief or 
damages from her.  Id. at 2. 
Plaintiff Krausz owns a rental property in Columbia, South Carolina, and is 
currently leasing the property to a tenant for a monthly rent of $700.00.  [Doc. 18-
4, p. 1].  When Plaintiff Krausz’ tenant failed to comply with the terms of a 
consent agreement regarding past due rent, Plaintiff Krausz obtained a writ of 
possession and scheduled the eviction for September 21, 2020.  Id. at 2.  Before the 
eviction could be executed, Plaintiff Krausz’ tenant provided him with a 
declaration indicating that she is a covered person under the Order.  Id. at 2-3.  As 
a result, the eviction did not proceed as scheduled.  Id.  Plaintiff Krausz asserts that 
the tenant appears to be insolvent and that he will likely be unable to obtain any 
economic relief or damages from her.  Id. at 3.       
Plaintiff Jones owns a rental property in Georgia.  [Doc. 18-5, p. 1].  On 
August 24, 2020, Plaintiff Jones began the eviction process by serving her tenant 
with a dispossessory affidavit.  Id.  At the hearing to determine whether the tenant 
would be evicted, which was held on September 8, 2020, Plaintiff Jones’ tenant 
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represented to the court that his failure to pay rent was related to the COVID-19 
pandemic.  Id.  Even though Plaintiff Jones’ tenant did not submit a declaration 
that would comply with the Order or show that he is a covered person, the 
dispossessory court continued all proceedings until January 2021.  Id.  Plaintiff 
Jones concludes that her tenant is insolvent and that she will not be able to obtain 
any economic relief or damages from him.  Id. at 2.   
On September 8, 2020, Plaintiff Brown brought this action against Alex 
Azar, in his official capacity as Secretary of HHS, HHS, Nina B. Witkofsky, in her 
official capacity as acting chief of staff for the CDC, and the CDC (collectively, 
“Defendants”) seeking to invalidate the Order.  [Doc. 1].  Thereafter, on September 
18, 2020, an Amended Complaint was filed adding the other plaintiffs.  [Doc. 12].  
The instant Motion for Preliminary Injunction was also filed on September 18, 
2020.  [Doc. 18].  In their Motion for Preliminary Injunction, Plaintiffs ask this 
Court to enter an order prohibiting Defendants from enforcing the Order.  Id. at 10.  
Briefing on the motion closed on October 16, 2020,2 and oral argument was heard 
by video conference on October 20, 2020.  Plaintiffs’ motion is ripe for review.   
 
2 In addition to the parties’ briefs, and with the Court’s permission, two amicus curiae 
briefs were filed with the Court.  The first brief was submitted by twenty-four national 
and local associations and experts who focus on housing and/or public health.  [Doc. 31-
1, pp. 3-4].  Atlanta Legal Aid Society, the National Housing Law Project and Legal 
Services of Northern Virginia submitted the second brief.  [Doc. 33-1].  
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ANALYSIS 
 
A plaintiff seeking preliminary injunctive relief must show the following: 
(1) a substantial likelihood that he will ultimately prevail on the 
merits; (2) that he will suffer irreparable injury unless the injunction 
issues; (3) that the threatened injury to the movant outweighs 
whatever damage the proposed injunction may cause to the opposing 
party; and (4) that the injunction, if issued, would not be adverse to 
the public interest.   
 
Sofarelli v. Pinellas Cnty., 931 F.2d 718, 723-24 (11th Cir. 1991) (citation 
omitted).  “[A] preliminary injunction is an extraordinary and drastic remedy not to 
be granted unless the movant clearly establish[es] the ‘burden of persuasion’ as to 
each of the four prerequisites.”  Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 
2000) (citation omitted).  Granting a preliminary injunction is the exception rather 
than the rule.  Id.   
 
As a preliminary matter, Defendants challenge Plaintiffs’ standing to bring 
the suit.  They also argue that the action cannot proceed because Plaintiffs failed to 
join indispensable parties.  The Court will first address the standing and joinder 
issues before turning to an analysis of the four preliminary injunction prerequisites.   
I. 
Preliminary Issues 
A. Plaintiffs’ Standing 
This Court must first answer the threshold question of whether Plaintiffs 
have standing.  Litigants must have standing to properly invoke the jurisdiction of 
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the federal courts.  Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992).  “In 
the absence of standing, a court is not free to opine in an advisory capacity about 
the merits of a plaintiff’s claims, and the court is powerless to continue.”  
Hollywood Mobile Estates Ltd. v. Seminole Tribe, 641 F.3d 1259, 1265 (11th Cir. 
2011) (citation omitted).  The standing doctrine requires a plaintiff to show that he:  
(1) suffered an injury-in-fact; (2) that is fairly traceable to the challenged conduct 
of the defendant; and (3) that is likely to be redressed by a favorable judicial 
decision.  Lujan, 504 U.S. at 560.  At the pleading stage, the court must accept as 
true all material allegations and must construe them in favor of the complaining 
party.  Corbett v. Transp. Sec. Admin., 930 F.3d 1225, 1228 (11th Cir. 2019).  If a 
court is presented with “facts beyond the four corners of the pleading that are 
relevant to the question of standing,” the court may consider those facts.  Id. 
(citation and punctuation omitted).  
Defendants contest the injury-in-fact requirement.  The injury-in-fact 
requirement helps “ensure that the plaintiff has a ‘personal stake in the outcome of 
the controversy.’”  Susan B. Anthony List v. Driehaus, 573 U.S. 149, 158 (2014) 
(citation omitted).  A plaintiff must show that the injury is “concrete and 
particularized” and “actual or imminent, not ‘conjectural’ or ‘hypothetical.’”  Id. 
(citation omitted).  “An allegation of future injury may suffice if the threatened 
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injury is certainly impending or there is a substantial risk that the harm will occur.”  
Id. (citation and punctuation omitted).   
Each of the individual plaintiffs stated in their affidavits that because of the 
Order, they had incurred “damages to [their] property.”  [Docs. 18-2, p. 3, 18-3, p. 
2, 18-4, p. 3 and 18-5, p. 2].  Taking issue with this particular statement, 
Defendants argue that the Order does not actually apply to any of the individual 
plaintiffs, and thus they are not injured.  Defendants contend that the individual 
plaintiffs are permitted to evict each of their tenants now, despite the Order, 
because the Order permits a landlord to evict a tenant who damages property or 
poses a significant risk of damage to property.  This Court disagrees.    
As an initial matter, “[w]here only injunctive relief is sought, only one 
plaintiff with standing is required.”  Gwinnett Cnty. NAACP v. Gwinnett Cnty. 
Bd. of Registration & Elections, 446 F. Supp. 3d 1111, 1118 (N.D. Ga. 2020) 
(citation and punctuation omitted); see also Vill. of Arlington Heights v. Metro. 
Hous. Dev. Corp., 429 U.S. 252, 264 n.9 (1977) (holding that when at least one 
plaintiff has standing, the Court need not consider whether the other plaintiffs have 
standing to maintain the suit).  For the reasons explained below, this Court finds 
that at least two of the plaintiffs—Plaintiff Rondeau and Plaintiff Krausz—have 
shown that they have standing to bring this action.        
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Plaintiff Rondeau submitted an affidavit wherein he explained that he 
currently has a tenant renting his property in Vale, North Carolina for $1,000.00 a 
month.  [Doc. 18-3, p. 1].  Plaintiff Rondeau’s tenant has not paid any rent since 
July 6, 2020, and currently owes $2,100.00 in unpaid rent and associated late fees.  
Id.  On August 24, 2020, Plaintiff Rondeau obtained a writ of summary ejectment 
for the non-payment of rent, which became final on September 3, 2020.  Id.  He 
subsequently obtained a writ of possession and scheduled the eviction for 
September 21, 2020.  Id.  Before Plaintiff Rondeau’s tenant was removed, his 
tenant provided him with a declaration consistent with the Order, thus stopping the 
eviction.  Id. at 1-2.  Although Plaintiff Rondeau stated in his affidavit that he has 
incurred “damages to [his] property,” no evidence is before the Court that Plaintiff 
Rondeau’s tenant damaged the property in such a way that she could be evicted for 
anything other than the non-payment of rent.3  The fact remains that Plaintiff 
Rondeau obtained a writ of possession based on the non-payment of rent, and not 
on any other ground.     
 
This Court finds that Plaintiff Rondeau’s injury is concrete and 
 
3 In addressing Defendants’ argument as to this issue in their reply brief, Plaintiffs state 
that the damages mentioned in the affidavits refer to “wear and tear and ordinary damage 
to their property while their tenants remain [in the property] without legal authorization.”  
[Doc. 45, pp. 4-5].   
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particularized.  He obtained a writ of summary ejectment based on the non-
payment of rent, a writ of possession and subsequently scheduled an eviction for 
September 21, 2020.  When his tenant provided a declaration consistent with the 
Order, he was unable to proceed with the eviction.  Now, his tenant remains in the 
property despite not paying rent.  This is not a conjectural or hypothetical injury.  
But for the Order, Plaintiff Rondeau would have evicted his tenant.  Accordingly, 
Plaintiff Rondeau has shown that he has standing to pursue the action.   
Similarly, Plaintiff Krausz obtained a writ of ejectment with an eviction 
scheduled for September 21, 2020.  [Doc. 18-4, p. 2].  Like Plaintiff Rondeau, the 
eviction was immediately stayed after Plaintiff Krausz’ tenant presented a 
declaration showing that she is a covered person under the Order.  Id. at 2-3.  
Accordingly, for the same reasons Plaintiff Rondeau has standing, Plaintiff Krausz 
does also.    
For different reasons, Defendants separately attack the standing of Plaintiff 
Brown, Plaintiff Jones and Plaintiff NAA.4  As explained above, however, when a 
case involves multiple plaintiffs and injunctive relief is sought, a court need not 
address the standing for each plaintiff.  Therefore, at this time, this Court will not 
 
4 For instance, Defendants attack the standing of Plaintiff Brown because he has not yet 
initiated eviction proceedings and merely believes that if he did start the proceedings, his 
tenant would submit a declaration showing that she is a covered person under the Order.   
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analyze whether the remaining plaintiffs have standing.   
B. Indispensable Parties 
Defendants contend that Plaintiffs’ tenants are indispensable parties, thus 
precluding the possibility of injunctive relief.  Federal Rule of Civil Procedure 19 
sets forth a two-part test for determining whether a party is indispensable.  The 
court must first decide under Rule 19(a) whether the person in question should be 
joined.  Laker Airways, Inc. v. British Airways, PLC, 182 F.3d 843, 847 (11th Cir. 
1999).  Then, if the court determines that the person should be joined, but for some 
reason cannot be, “the court must analyze the factors outlined in Rule 19(b) to 
determine whether ‘in equity and good conscience the action should proceed 
among the parties before it, or should be dismissed, the absent person thus 
regarded as indispensable.’”  Id. (citation omitted). 
Rule 19(a)(1) sets forth two categories of necessary parties who must be 
joined if feasible: 
A person who is subject to service of process and whose joinder 
will not deprive the court of subject-matter jurisdiction must be 
joined as a party if: 
 
(A) in that person’s absence, the court cannot accord complete 
relief among existing parties; or 
 
(B) that person claims an interest relating to the subject of the 
action and is so situated that disposing of the action in the 
person’s absence may: 
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(i) 
as a practical matter impair or impede the person’s 
ability to protect the interest; or 
 
(ii) 
leave an existing party subject to a substantial risk of 
incurring double, multiple, or otherwise inconsistent 
obligations because of the interest. 
 
In deciding whether a party should be joined under Rule 19(a), “‘pragmatic 
concerns, especially the effect on the parties and the litigation,’ control.”  
Challenge Homes, Inc. v. Greater Naples Care Ctr., Inc., 669 F.2d 667, 669 (11th 
Cir. 1982) (citation omitted).   
In this case, Defendants have not shown that the tenants are necessary 
parties who should be, but cannot be, joined under Rule 19(a).  As to the first 
category of necessary parties, Defendants have made no showing that complete 
relief is impossible absent the joinder of the tenants.  Although Defendants argue 
that the tenants are necessary parties because an issue exists as to whether the 
tenants are actually covered persons under the Order, the parties can determine 
through discovery whether the tenant is a covered person even if that tenant is not 
made a party to this litigation.  This argument is thus without merit.     
As to the second category of necessary parties, which includes whether the 
party has an interest related to the subject of the action and the party’s absence may 
impede the party’s ability to protect that interest, Defendants have also failed to 
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meet their burden.  Even though Plaintiffs’ tenants unquestionably have an interest 
in this litigation inasmuch as if the Order is enjoined, then the tenants would no 
longer have protection against eviction through December 31, 2020, the tenants’ 
interests remain adequately protected because they squarely align with Defendants’ 
interests.  Cf. Fla. Wildlife Fed’n, Inc. v. U.S. Army Corps. of Eng’rs, 859 F.3d 
1306, 1317 (11th Cir. 2017) (recognizing that the potential indispensable party at 
issue had a strong interest in the outcome of the litigation and that the party’s 
interest was not adequately protected by the existing parties).  Furthermore, even 
though Plaintiffs’ tenants have an interest in the home in which they live and are 
currently renting, the existing parties are not subject to a substantial risk of 
incurring double, multiple or otherwise inconsistent obligations because of that 
interest.  Ultimately, because the tenants do not fit any of the Rule 19(a) categories 
for persons who should be joined if feasible, the tenants are not indispensable 
parties under Rule 19.  As Defendants have not shown that Plaintiffs’ tenants 
should be joined as parties, this Court need not analyze the second part of the 
test—determining whether in equity and good conscience the action should 
proceed.       
For the reasons explained in the sections above, the Court is satisfied that 
Plaintiff Rondeau and Plaintiff Krausz have standing, and the action need not be 
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dismissed for the failure to join indispensable parties.  As such, this Court will now 
review whether preliminary injunctive relief is proper.   
II. 
Preliminary Injunction Prerequisites  
A. Substantial Likelihood of Success on the Merits 
A plaintiff seeking preliminary injunctive relief must show a substantial 
likelihood that he will ultimately prevail on the merits of his claim.  Sofarelli, 931 
F.2d at 723.  This factor is generally considered the most important of the four 
factors.  Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986).   
Plaintiffs’ Amended Complaint raises eight challenges to the Order.  [Doc. 
12].  In their Motion for Preliminary Injunction, however, they advance only three 
of the claims.  First, Plaintiffs contend that the Order lacks a statutory and 
regulatory basis.  Second, Plaintiffs assert that even if the Order was authorized, 
the Order is arbitrary and capricious.  Third, Plaintiffs argue that the Order violates 
Plaintiffs’ rights to access the courts.    
1. Statutory and Regulatory Basis 
Plaintiffs argue that the CDC acted without statutory and regulatory 
authority because both 42 U.S.C. § 264 and 42 C.F.R. § 70.2 limit the CDC to 
implementing regulations that involve inspection, fumigation, disinfection, 
sanitation, pest extermination and destruction of animals or articles believed to be 
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sources of infection.  Alternatively, Plaintiffs contend that even if the CDC has the 
authority to issue other types of regulations, the CDC acted without statutory and 
regulatory authority because (1) the Order is not reasonably necessary to prevent 
the spread of disease; and (2) the Order does not show that the state and local laws 
were insufficient to prevent the spread of disease.5  
The question before this Court is whether the CDC had the authority to 
temporarily halt evictions for certain covered persons.  The resolution of the 
question “requires an inquiry familiar to the courts:  interpreting a federal statute to 
determine whether executive action is authorized by, or otherwise consistent with, 
the enactment.”  Gonzales v. Oregon, 546 U.S. 243, 249 (2006).  Importantly, this 
Court’s review is a narrow one:  “to discern the meaning of the statute and the 
implementing regulation[].”  Indus. Union Dep’t, AFL-CIO v. Am. Petroleum 
Inst., 448 U.S. 607, 663 (1980) (Burger, J., concurring).  Under no circumstances 
does the judicial function “extend to substantive revision of regulatory policy.  
That function lies elsewhere—in Congressional and Executive oversight or 
amendatory legislation.”  Id.   
 
5 Plaintiffs’ alternative arguments are addressed in this Court’s discussion of whether the 
Order is arbitrary and capricious.   
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The Order in this case was issued pursuant to 42 U.S.C. § 264 and 42 C.F.R. 
§ 70.2, and thus discussions of both are necessary to determine whether the CDC 
had a statutory and regulatory basis for issuing the Order.  42 U.S.C. § 264(a) 
authorizes the Secretary of HHS6 to “make and enforce such regulations as in his 
judgment are necessary to prevent the introduction, transmission, or spread of 
communicable diseases from foreign countries into the States . . . or from one State 
. . . into any other State.”  The statute then states that for purposes of carrying out 
and enforcing such regulations, the Secretary of HHS “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.”  § 264(a).   
In turn, the Secretary of HHS delegated authority to the Director of the 
CDC.  42 C.F.R. § 70.2.  § 70.2 states that whenever the Director of the CDC 
determines that the measures taken by the health authorities of any state or local 
 
6 Although the statute assigns authority to the Surgeon General, Reorganization Plan 
Number 3 of 1966 abolished the Office of the Surgeon General and transferred all 
statutory powers and functions of the Surgeon General to the Secretary of Health, 
Education and Welfare, now the Secretary of HHS.  31 Fed. Reg. 8855, 80 Stat. 1610 
(June 25, 1966).  The Office of the Surgeon General was reestablished in 1987, but the 
Secretary of HHS has retained these authorities.     
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jurisdiction are insufficient to prevent the spread of a communicable disease, 
“he/she may 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.” 
The Eleventh Circuit has directed that “‘courts should always begin the 
process of legislative interpretation . . . where they often should end it as well, 
which is with the words of the statutory provision.’”  United States ex rel. Hunt v. 
Cochise Consultancy, Inc., 887 F.3d 1081, 1088 (11th Cir. 2018) (citation 
omitted).  See also CBS Inc. v. PrimeTime 24 Joint Venture, 245 F.3d 1217, 1222 
(11th Cir. 2001) (stating that ordinarily, courts should begin the construction of a 
statutory provision with its words).  Indeed, the Supreme Court has reiterated “time 
and again that courts must presume that a legislature says in a statute what it means 
and means in a statute what it says there.”  Conn. Nat’l Bank v. Germain, 503 U.S. 
249, 253-54 (1992) (internal citations and quotation marks omitted). 
In determining whether the CDC was authorized to implement the Order, the 
starting point is therefore “the language of the delegation provision itself.”  
Gonzales, 546 U.S. at 258.  “In many cases authority is clear because the statute 
gives an agency broad power to enforce all provisions of the statute.”  Id.  For 
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example, when an agency is authorized to “prescribe such rules and regulations as 
may be necessary in the public interest to carry out the provisions of the Act,” 
Congress’ intent to give an agency broad power is clear.  Id. at 259 (citation and 
punctuation omitted). 
Here, the grant of authority is broad because the delegation provision (42 
U.S.C. § 264) is not substantially different from statutes that give an agency the 
authority to “prescribe such rules and regulations as may be necessary in the public 
interest to carry out the provisions of the Act.”  Id. at 258.  Thus, Congress’ intent, 
as evidenced by the plain language of the delegation provision, is clear:  Congress 
gave the Secretary of HHS broad power to issue regulations necessary to prevent 
the introduction, transmission or spread of communicable diseases.  Because, as 
forth below, the Order is necessary to control the COVID-19 pandemic, the CDC 
was authorized to issue it.   
The Court could rest its conclusion on this basis alone.  See Polkey v. 
Transtecs Corp., 404 F.3d 1264, 1268 (11th Cir. 2005) (stating that where the 
“statute’s meaning . . . is clear and unambiguous, its plain language controls [the] 
analysis,” and the “language [of the statute] both begins and ends [the] inquiry”); 
Conn. Nat’l Bank, 503 U.S. at 253-54 (“When the words of a statute are 
unambiguous, then . . . judicial inquiry is complete.”) (internal quotation marks 
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omitted).  But additional analysis is useful in this case, particularly in light of 
Plaintiffs’ argument that the second sentence of § 264(a), which states that “[f]or 
purposes of carrying out and enforcing such regulations, the [Secretary of HHS] 
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,” operates to limit the Secretary of 
HHS’ authority to just those (or similar) measures.  Thus, the Court will look at the 
“whole statutory text, considering the purpose and context of the statute, and 
consulting any precedents or authorities.”  Kasten v. Saint-Gobain Performance 
Plastics Corp., 563 U.S. 1, 7 (2011). 
Further analysis amplifies the flaws in Plaintiffs’ arguments.  First, limiting 
the authority of the Secretary of HHS in the way Plaintiffs suggest makes little 
sense when considering the subsequent subsections of § 264.  Specifically, § 
264(b) provides, in part, that “[r]egulations prescribed under this section shall not 
provide for the apprehension, detention, or conditional release of individuals 
except for the purpose of preventing the introduction, transmission, or spread of 
such communicable diseases as may be specified from time to time.”  § 264(c) 
provides that except as detailed in § 264(d), regulations providing for “the 
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apprehension, detention, examination, or conditional release of individuals, shall 
be applicable only to individuals coming into a State . . . from a foreign country.”  
§ 264(d)(1) clarifies that when an individual is reasonably believed to be infected 
with a communicable disease and moving between states, the regulations may 
provide that the individual “be detained for such time and in such manner as may 
be reasonably necessary.”     
In this Court’s view, if the Secretary of HHS is only permitted to make and 
enforce regulations concerning the enumerated list found in § 264(a), then 
Congress had no reason to explain what authority the Secretary of HHS has when 
issuing regulations concerning individuals reasonably believed to be infected with 
a communicable disease as outlined in §§ 264(b)-264(d).  In other words, if the list 
is exhaustive, then the Secretary of HHS would have no power at all to detain 
individuals.  The presence of the additional subsections governing detainment of 
individuals means that the list contained in the first subsection is not an exhaustive 
list of the permissible measures available to the Secretary of HHS.  See United 
States v. Hastie, 854 F.3d 1298, 1304 (11th Cir. 2017). 
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42 C.F.R. § 70.2, which is fully contained within one sentence, closely 
mirrors its statutory counterpart,7 and therefore, for the same reasons the Secretary 
of HHS has broad authority to make and enforce regulations as in his judgment are 
necessary to prevent the spread of disease, the CDC likewise has the same 
authority.  The only qualifying condition is that the CDC cannot act unless it 
determines that the measures taken by the health authorities of state or local 
governments are insufficient to prevent the spread of disease. 
Additionally, this Court notes that the regulation states that the CDC may 
take measures to prevent the spread of disease as it deems necessary, “including” 
the enumerated items.  § 70.2.  “[T]he word include does not ordinarily introduce 
an exhaustive list.”  Hastie, 854 F.3d at 1304.  In Hastie, the Eleventh Circuit 
explained that the Supreme Court has “repeatedly held that the word ‘including’ in 
a statute signifies enlargement, not limitation.”  Id.  Because the term “including” 
in the regulation does not signal an exhaustive list, this Court finds that the list of 
measures in the regulation following the word including are not the only measures 
available to the CDC.    
 
7 Sometimes this is known as a “parroting regulation”—a regulation that merely 
paraphrases the statutory language.  Gonzales, 546 U.S. at 257.   
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Finally, at least one other federal court has considered and rejected the 
argument Plaintiffs make here.  Indep. Turtle Farmers of La. v. United States, 703 
F. Supp. 2d 604, 620 (W.D. La. 2010).  In Independent Turtle Farmers, the court 
analyzed a regulation promulgated by the Food and Drug Administration (“FDA”) 
that banned the sale of viable turtle eggs and live turtles with a shell of less than 
four inches in length (“Turtle Ban”).  Id. at 607.  The Turtle Ban is the only 
federally enacted ban on the sale of any pet and was enacted primarily to curb the 
spread of salmonellosis.  Id.  The plaintiffs, an association of commercial turtle 
farmers, argued that the FDA did not have statutory and regulatory authority to 
enact and maintain the Turtle Ban.  Id. at 618.   
 In analyzing whether Congress delegated power to the FDA to regulate the 
sale of turtles as pets, the court explained that the FDA derived its authority to 
enact the regulation from 42 U.S.C. § 264(a)—the same implementing statute 
involved in this case.  Id. at 618-19.  The court acknowledged that § 264(a) 
specifies that the FDA may provide for inspection, fumigation, disinfection, 
sanitation, pest extermination and destruction of animals or articles found to be so 
infected or contaminated.  Id. at 619.  Like Plaintiffs in this case, the Independent 
Turtle Farmers plaintiffs asked the court to “read this list of ‘powers’ as an 
exhaustive one.”  Id.  That, the court was not willing to do. 
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First, the court explained that the list of enumerated items “directly precedes 
a ‘catch-all’ grant of authority, allowing the Secretary (or the FDA Commissioner) 
to enact ‘other measures, as in his judgment may be necessary,’ in addition to the 
measures suggested in the list.”  Id. at 619-20 (emphasis added).  The court 
explained that the catch-all phrase “precludes interpretation of the list as 
exhaustive.”  Id. at 620.  The court further stated that “the list does not act as a 
limitation upon the types of regulations that may be enacted under [§ 264].  
Instead, the list contains certain ‘measures’ which the FDA may employ [f]or 
purposes of carrying out and enforcing such regulations.”  Id. (citation omitted).  
Even though the enumerated list only speaks in terms of “destruction of 
animals”—and not regulating or preventing the sale of such animals—the court 
concluded that the Turtle Ban was permissible because “there is no express 
prohibition in the statute evidencing contrary congressional intent.”  Id.  The court 
reasoned that the list of measures “is not phrased as a limitation upon the type of 
regulation that may be promulgated by the FDA.  Instead, [§ 264(a)] grants the 
FDA authority to enact ‘such regulations as in [its] judgment are necessary to 
prevent the introduction, transmission, or spread of communicable diseases.’”  Id. 
(citation omitted).  Ultimately, the court found that the FDA had the authority to 
enact a ban on the sale of turtles.  Id.   
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In sum, the clear and broad delegation of authority in the first sentence of § 
264(a); the context provided by the subsequent subsections; the parroting language 
of § 70.2, which specifically uses the term including—a term of enlargement; and 
persuasive authority from the Independent Turtle Farmers court all point to the 
same conclusion:  the Order has statutory and regulatory authority, and the CDC 
may take those measures that it deems reasonably necessary to prevent the spread 
of disease, so long as it determines that the measures taken by any state or local 
government are insufficient to prevent the spread of the disease. 
Plaintiffs’ additional argument that several of the canons of construction 
(ejusdem generis, expression unius, noscuitur a sociis and casus omisus) compel a 
different result is not persuasive.  “For one thing, canons are not mandatory rules.  
They are guides that ‘need not be conclusive.’”  Chickasaw Nation v. United 
States, 534 U.S. 84, 94 (2001) (citation omitted).  See also Conn. Nat’l Bank, 503 
U.S. at 253 (stating that “canons of construction are no more than rules of thumb 
that help courts determine the meaning of legislation”).  Canons are not necessarily 
outcome determinative because “other circumstances evidencing congressional 
intent can overcome their force,” and “[s]pecific canons are often countered by 
some maxim pointing in a different direction.”  Chickasaw Nation, 534 U.S. at 94 
(citation and internal punctuation omitted).   
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In any event, none of the four cannons Plaintiffs offer applies here because 
there is no ambiguity to which they could be applied.  As the Court has already 
explained, the implementing statute (and derivative regulation) demonstrate 
Congress’ unambiguous intent to delegate broad authority to the CDC to enter an 
order such as the one at issue here.  The Court will nevertheless address each 
canon briefly for the purposes of a complete record. 
The principle of ejusdem generis counsels that “‘when a general term 
follows a specific one, the general term should be understood as a reference to 
subjects akin to the one with specific enumeration.’”  Ali v. Fed. Bureau of 
Prisons, 552 U.S. 214, 223 (2008) (citation omitted).  “‘The rule . . . is only an 
instrumentality for ascertaining the correct meaning of words when there is 
uncertainty,’” and “‘it may not be used to defeat the obvious purpose of 
legislation.’”  United States v. Powell, 423 U.S. 87, 91 (1975) (emphasis added) 
(citation omitted).  Thus, where the court discerns no uncertainty in the statute and 
congressional intent is clear, it is inappropriate to apply the rule.  Harrison v. PPG 
Indus., Inc., 446 U.S. 578, 588-89 (1980).   
The Court finds it inappropriate to apply the principle of ejusdem generis 
here in large part because it has already found that there is no ambiguity in the 
statute or regulation.  Accordingly, the rule cannot be used to procure a different 
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result or defeat clear congressional intent.  Moreover, the canon is not applicable to 
§ 70.2 because that regulation does not contain the requisite list of specific terms 
followed by a general one.  Instead, the specific terms are preceded by the word 
“including,” which signifies a more expansive, non-exhaustive list. 
The expressio unius canon “stands for the proposition that the mention of 
one thing implies the exclusion of the other.”  Wilhelm Pudenz, GmbH v. 
Littlefuse, Inc., 177 F.3d 1204, 1209 (11th Cir. 1999).  “The force of any negative 
implication . . . depends on context,” and “[the Supreme Court] ha[s] long held that 
the expressio unius canon does not apply ‘unless it is fair to suppose that Congress 
considered the unnamed possibility and meant to say no to it.’”  Marx v. Gen. 
Revenue Corp., 568 U.S. 371, 381 (2013) (citation omitted).  See also N.L.R.B. v. 
SW Gen., Inc., 137 S. Ct. 929, 940 (2017) (“The expressio unius canon applies 
only when ‘circumstances support[] a sensible inference that the term left out must 
have been meant to be excluded.’”) (citation omitted). 
In this case, there is no “sensible inference” that Congress meant to limit the 
measures the CDC may properly implement to just those listed in the text or their 
counterparts.  Nor is there evidence that Congress meant to exclude the specific 
measure at issue here.  Rather, the language employed in the statute and regulation 
demonstrates the opposite.  As a result, the expressio unius canon does not apply. 
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At the core of the doctrine of noscitur a sociis, the third canon advanced by 
Plaintiffs, is the principle that “‘an ambiguous term may be given more precise 
content by the neighboring words with which it is associated.’”  Bilski v. Kappos, 
561 U.S. 593, 604 (2010) (citation omitted).  For example, in Jarecki v. G. D. 
Searle & Co., the court looked at two other words enumerated in a sentence, 
“exploration” and “prospecting,” to determine the meaning of a third word, 
“discovery,” which the court found was ambiguous and capable of many meanings.  
367 U.S. 303, 307 (1961).  The noscitur a sociis canon is not “an invariable rule 
[because] [a] word may have a character of its own not to be submerged by its 
association.”  Russell Motor Car Co. v. United States, 261 U.S. 514, 519 (1923).  
Importantly, it “ha[s] no place [in statutory construction], . . . except in the domain 
of ambiguity,” and it cannot be used to create doubt—only to remove it.  Id. 
Apart from the obvious flaw that Plaintiffs have failed to identify the 
existing ambiguous word that must be defined in reference to other similar 
enumerated words, like the other canons Plaintiffs have invoked, this rule is not 
applicable in the absence of ambiguity.  Thus, its use here would be improper. 
Finally, the principle of casus omissus echoes the common thread in this 
Court’s opinion—that the “import of statutory language is what it says, not what it 
ought to say” or, in this case, not what Plaintiffs argue it meant to omit.  Mamani v. 
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Berzain, 825 F.3d 1304, 1310 (11th Cir. 2016) (noting that the court is not 
“allowed to add or subtract words from a statute” that may better serve a certain 
policy and underscoring that its “task is merely to apply statutory language, not to 
rewrite it”).  Under this rule, a seeming omission in a statute “does not justify 
judicial legislation.”  Ebert v. Poston, 266 U.S. 548, 554 (1925). 
Contrary to Plaintiffs’ assertion, reading the statute broadly as it is written is 
exactly in line with the casus omissus canon.  And refusing to improperly narrow 
its meaning, as Plaintiffs propose, is not akin to inserting terms that Congress did 
not include. 
In sum, this Court finds that Plaintiffs have not clearly shown a substantial 
likelihood of success on the merits as to their claim that the Order was 
promulgated without statutory and regulatory authority.  In other words, Plaintiffs 
have not clearly shown that the regulation limits the CDC’s authority to measures 
involving inspection, fumigation, disinfection, sanitation, pest extermination and 
the destruction of animals or articles believed to be sources of infection.  
2. Arbitrary and Capricious 
This Court will next analyze Plaintiffs’ argument that the Order is arbitrary 
and capricious.  The Administrative Procedure Act (“APA”) “sets forth the 
procedures by which federal agencies are accountable to the public and their 
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actions subject to review by the courts.”  Franklin v. Massachusetts, 505 U.S. 788, 
796 (1992).  Agencies must engage in “reasoned decisionmaking,” and agency 
rules must be set aside if they are arbitrary or capricious.  Dep’t of Homeland Sec. 
v. Regents of the Univ. of Cal., 140 S. Ct. 1891, 1905 (2020).   
An agency rule is arbitrary and capricious if the agency relied on 
factors that Congress did not intend for it to consider, “entirely 
failed to consider an important aspect of the problem, offered an 
explanation for its decision that runs counter to the evidence 
before the agency, or is so implausible that it could not be 
ascribed to a difference in view or the product of agency 
expertise.”     
 
Wright v. Everson, 543 F.3d 649, 654 (11th Cir. 2008).  The arbitrary and 
capricious standard is exceedingly deferential and “courts are required to defer to 
conclusions reached by an agency that are base[d] on its specialized expertise.”  
Nat’l Parks Conservation Ass’n v. U.S. Dep’t of the Interior, 835 F.3d 1377, 1384 
(11th Cir. 2016).  Certainly, where officials undertake to act in areas fraught with 
medical and scientific uncertainties, as is the case here, “their latitude must be 
‘especially broad.’”  S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 
1613, 1613 (2020) (Roberts, J., concurring) (citation omitted).  Moreover, “[w]here 
those broad limits are not exceeded, they should not be subject to second-guessing 
by an ‘unelected federal judiciary,’ which lacks the background, competence, and 
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expertise to assess public health and is not accountable to the people.”  Id. at 1613-
14 (citation omitted).   
Plaintiffs argue that the Order is arbitrary and capricious because it is not 
supported by substantial evidence or relevant data.  Substantial evidence is relevant 
evidence that a reasonable mind might accept as adequate to support a conclusion.  
Nat’l Parks, 835 F.3d at 1384.  “This standard precludes a reviewing court from 
‘deciding the facts anew, making credibility determinations, or re-weighing the 
evidence.’”  Id. (citation omitted).  “It is a ‘foundational principal of administrative 
law’ that judicial review of agency action is limited to ‘the grounds that the agency 
invoked when it took the action.’”  Dep’t of Homeland Sec., 140 S. Ct. at 1907 
(citation omitted).  Importantly, “[a]n agency must defend its actions based on the 
reasons it gave when it acted.”  Id. at 1909.  “To put a finer point on it, the APA 
requires agencies to reasonably explain to reviewing courts the bases for the 
actions they take and the conclusions they reach.”  Brotherhood of Locomotive 
Eng’rs & Trainmen v. Fed. R.R. Admin., 972 F.3d 83, 115 (D.C. Cir. 2020).   
In this case, Plaintiffs contend that:  (1) the CDC did not show with 
substantial evidence that a temporary eviction moratorium is reasonably necessary 
to prevent the spread of COVID-19; and (2) the CDC did not demonstrate with 
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substantial evidence that state and local measures were insufficient to prevent the 
spread of COVID-19.  
i. 
Reasonably Necessary 
Plaintiffs argue that the Order is not supported by evidence that shows that 
an eviction moratorium is “reasonably necessary” to prevent the further spread of 
disease.  Specifically, Plaintiffs contend that the evidence does not show that 
evictions will increase COVID-19 infections.  Plaintiffs then question why the 
CDC elected to address the issue of evictions instead of other things that might 
increase the risk of community spread, like attending school or patronizing bars.  
Plaintiffs ultimately contend that the Order is not reasonably necessary because it 
is “hardly the most pressing concern for virus containment.”  [Doc. 15-1, p. 27].   
 
This Court disagrees with Plaintiffs because the Order explains, in detail, 
why a temporary eviction moratorium is reasonably necessary.  The Order states 
that there is currently a global pandemic of COVID-19, which presents a “historic 
threat to public health.”  Temporary Halt in Residential Evictions to Prevent the 
Further Spread of COVID-19, 85 Fed. Reg. at 55,292.  As of August 24, 2020, 
COVID-19 had infected over 5.5 million individuals in the United States, resulting 
in over 174,000 deaths.  Id.  Underscoring the seriousness of the pandemic, the 
CDC referenced one study that showed that the mortality rate associated with 
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COVID-19 during the early phase of the outbreak was comparable to the 1918 
influenza pandemic, where 675,000 lives were lost in the United States alone.  Id.  
In the Order, the CDC explains that despite measures such as border closures, 
travel restrictions and stay-at-home orders, COVID-19 continues to spread, and 
further action is needed.  Id.       
Without an eviction moratorium, evidence relied upon by the CDC shows 
that as many as thirty to forty million people in the United States—an 
unprecedented number—could be at risk of eviction.  Id. at 55,295.  In plain terms, 
the Order notes that evicted people must move and many who are evicted (32% 
according to a Census Bureau American Housing Survey) move into shared 
housing or other congregate settings.  Id. at 55,294.  Shared housing includes 
moving in with friends and family or moving into transitional housing or shelters.  
Id.   
In its Order, the CDC addresses the spread of disease in these congregate 
housing situations.  First, the CDC recognizes that “COVID-19 spreads very easily 
and sustainably between people who are in close contact with one another (within 
about [six] feet), mainly through respiratory droplets produced when an infected 
person coughs, sneezes, or talks.”  Id. at 55,292.  The Order indicates that in 
transitional housing or shelters, challenges maintaining social distancing (staying 
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34 
more than six feet apart) exist because residents often gather closely or use shared 
equipment, such as kitchen appliances, laundry facilities, stairwells and elevators.  
Id. at 55,294.  Importantly, studies cited by the CDC demonstrate that “COVID-19 
transmission occurs readily within households” and “household contacts are 
estimated to be [six] times more likely to be infected by an index case of COVID-
19 than other close contacts.”  Id.  In sum, the evidence shows that the 
transmission rates will increase if people are forced to live in congregate settings.   
While some evicted individuals may move into shared housing or other 
congregate settings, as explained above, other evicted individuals may become 
homeless, thus raising a different set of concerns.  Id. at 55,295.  Between 2018 
and 2019, approximately five to fifteen percent of individuals experiencing 
homelessness did so as the result of being evicted.  Id.  In terms of COVID-19, 
homeless individuals are a high-risk population because it may not be possible to 
avoid a congregate setting, like a homeless shelter, especially as winter approaches 
and the temperature drops.  Id.  Citing to evidence showing high infection rates in 
homeless shelters, the CDC explains that homeless shelters are particularly 
vulnerable to COVID-19 outbreaks, especially if they become overcrowded.  Id.  
For the homeless not seeking refuge in a homeless shelter, the Order explains that 
many lack basic sanitation tools and equipment to effectively prevent disease.  Id. 
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Based on this evidence, the CDC “determined the temporary halt in 
evictions . . . constitutes a reasonably necessary measure under 42 C.F.R. § 70.2 to 
prevent the further spread of COVID-19 throughout the United States.”  Id. at 
55,296.  The Order explains that this is an appropriate measure “[b]ased on the 
convergence of COVID-19, seasonal influenza, and the increased risk of 
individuals sheltering in close quarters in congregate settings such as homeless 
shelters, which may be unable to provide adequate social distancing as populations 
increase, all of which may be exacerbated as fall and winter approach.”  Id.  
Significantly, the eviction moratorium only applies to those individuals whose 
housing options, if evicted, are limited to congregate settings or homelessness.  Id. 
at 55,293.  Throughout the Order, the potential risks and dangers of moving into a 
congregate living situation or becoming homeless are detailed, and the Order only 
prevents evictions of those individuals that swear, under penalty of perjury, that an 
eviction would result in congregate living or homelessness.  Id. at 55,292.   
Contrary to Plaintiffs’ argument, the CDC need not show that the eviction 
moratorium is the only measure that will prevent the spread of COVID-19 or the 
most pressing concern.  The CDC also need not show that it is the very best 
measure to reduce the spread of disease.  “A court is not to ask whether a 
regulatory decision is the best one possible or even whether it is better than the 
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alternatives.”  Fed. Energy Regul. Comm’n v. Elec. Power Supply Ass’n, 136 S. 
Ct. 760, 782 (2016).  In the situation we have here—an unprecedented pandemic 
with widespread contagion—this Court finds that the CDC’s response is 
reasonably calibrated to the seriousness of the disease it is combatting.  Simply put, 
the CDC has shown what it needs to:  that an eviction moratorium for individuals 
likely to be forced into congregate living situations is an effective public health 
measure that prevents the spread of communicable diseases because it aids the 
implementation of stay-at home and social distancing directives.  It is not this 
Court’s job to render a judgment that the CDC should have taken some other 
public measure.  Id. at 784.  This Court’s “important but limited role is to ensure 
that the [CDC] engaged in reasoned decisionmaking.”  Id.  This Court is satisfied 
that it has done so, as the CDC cited evidence and intelligibly explained the 
reasons for implementing the Order.  Ultimately, Plaintiffs have not shown a 
substantial likelihood of success on their claim that the Order is not reasonably 
necessary to prevent the spread of disease.     
ii. 
State Measures 
 
Plaintiffs also argue that the CDC did not show that the measures taken by 
the state and local governments were insufficient.  This Court disagrees, as the 
Order plainly states that the measures in state and local jurisdictions that do not 
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37 
provide protections for renters equal to or greater than the protections provided for 
in the Order are insufficient to prevent the spread of COVID-19.  Temporary Halt 
in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 
at 55,296.  Furthermore, at the outset of the CDC’s analysis, the CDC 
acknowledges that despite “best efforts, COVID-19 continues to spread and further 
action is needed.”  Id. at 55,292.     
Although the Order does not discuss non-eviction related mitigation efforts 
taken by the various states and local governments, the CDC did analyze each 
state’s eviction restrictions, and the evidence suggested that in the absence of 
eviction moratoria, tens of millions of Americans could be at risk of eviction on a 
scale that would be unprecedented in modern times.  Id. at 55,295-96 n.36.  The 
Eviction Lab Scorecard (“Scorecard”), which is cited by the CDC in its Order, 
contains a state-by-state analysis of eviction measures.  COVID-19 Housing Policy 
Scorecard, Eviction Lab, https://evictionlab.org/covid-policy-scorecard/ (last 
visited Oct. 24, 2020).  Specifically, the Scorecard distills the contents of 
“thousands of newly-released emergency orders, declarations, and legislation into a 
clear set of critical measures included in, and left out of, state-level pandemic 
responses related to eviction and housing.”  COVID-19 Housing Policy Scorecard 
Methodology, Eviction Lab, https://evictionlab.org/covid-housing-scorecard-
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methods/ (Apr. 20, 2020).  The Scorecard “provides comprehensive information 
about the varying approaches state-by-state” by analyzing the following categories:  
(1) initiation of eviction; (2) court process; (3) enforcement of eviction order; (4) 
short-term supports; and (5) tenancy preservation measures.  Id.  “The [S]corecard 
also includes figures for the number of renters in each state who could be affected 
by the housing crisis.”  Id. 
In Alabama, for instance, where it is estimated that the rental population 
exceeds 1.4 million, no state restrictions currently exist on the initiation of eviction 
proceedings, the court processes associated with evictions or the enforcement of 
eviction orders.  COVID-19 Housing Policy Scorecard, Eviction Lab, 
https://evictionlab.org/covid-policy-scorecard/ (last visited Oct. 24, 2020).  In other 
words, in Alabama, absent the Order, a landlord could evict a tenant for non-
payment of rent even if the tenant had sustained a substantial loss of household 
income and would likely be forced to live in a congregate living situation.  Id.  
Like numerous other states, Virginia, North Carolina, South Carolina and 
Georgia—all states where Plaintiffs have rental properties—also currently have no 
state restrictions on evictions.  Id.   
The CDC referenced the measures in place in various jurisdictions and, 
based on that knowledge, determined that a moratorium was necessary.  
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Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-
19, 85 Fed. Reg. at 55,295-96 n.36.  The knowledge that state and local 
governments in some of these jurisdictions have no restrictions at all on evictions 
(i.e., that evictions proceed unabated) combined with evidence that evictions 
contribute to the spread of COVID-19 by increasing the number of individuals 
living in congregate settings where disease spreads more rapidly is substantial 
evidence to show that the state restrictions (or lack thereof) were not adequate to 
prevent the spread of disease.  Because substantial evidence exists that state and 
local measures were inadequate to prevent the spread of disease (as some states 
have no measures at all), Plaintiffs are not substantially likely to succeed on their 
claim that the Order is arbitrary and capricious.   
3. Right to Access the Courts 
Plaintiffs next argue that they have shown a substantial likelihood of success 
on the merits because the Order unlawfully strips them of their constitutional rights 
to access the courts.  To properly determine whether Plaintiffs’ rights to access the 
courts are violated, it is important to consider what the Order does and does not do. 
The Order in this case does, on a temporary basis, prohibit a landlord from 
evicting a covered person from a residential property for the non-payment of rent.  
Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-
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19, 85 Fed. Reg. at 55,292.  The Order does not, however, apply to every tenant or 
to every possible reason for an eviction.  It also does not apply to all possible 
avenues of recovery for a landlord or to all procedural aspects of eviction 
proceedings.   
 As stated immediately above, the Order does not apply to every person 
renting a property.  Instead, the Order only applies to those persons who provide a 
declaration to their landlord under penalty of perjury indicating that:  (1) “[t]he 
individual has used best efforts to obtain all available government assistance for 
rent or housing”; (2) the individual satisfies certain income requirements; (3) “the 
individual is unable to pay the full rent or make a full housing payment due to 
substantial loss of household income, loss of compensable hours of work or wages, 
a lay-off, or extraordinary out-of-pocket medical expenses”; (4) “the individual is 
using best efforts to make timely partial payments that are as close to the full 
payment as the individual’s circumstances may permit, taking into account other 
nondiscretionary expenses”; and (5) “eviction would likely render the individual 
homeless—or force the individual to move into and live in close quarters in a new 
congregate or shared living setting—because the individual has no other available 
housing options.”  Id. at 55,293.   
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The Order also does not apply to every reason a landlord may evict a tenant.  
Specifically, the Order does not impede evictions of tenants who:   
(1) engag[e] in criminal activity while on the premises; (2) threaten[] 
the health or safety of other residents; (3) damag[e] or pos[e] an 
immediate and significant risk of damage to property; (4) violat[e] any 
applicable building code, health ordinance or other similar regulation; 
or (5) violat[e] another contractual obligation, other than the timely 
payment of rent.   
 
Id. at 55,294.   
Moreover, the Order does not prohibit Plaintiffs from seeking a different 
remedy to recover their losses.  The Order plainly preserves Plaintiffs’ rights to 
charge and collect “fees, penalties, or interest as a result of the failure to pay rent 
or other housing payment on a timely basis.”  Id. at 55,292.  Nothing in the Order 
prohibits a landlord from collecting these fees or past due rent via a breach of 
contract action or other similar remedy available under state law.  
Lastly, the Order does not apply to all procedural aspects of the eviction 
proceedings.  In a document entitled “Frequently Asked Questions,” which was 
published by the CDC, the CDC clarified that “[t]he Order is not intended to 
terminate or suspend the operations of any state or local court.  Nor is it intended to 
prevent landlords from starting eviction proceedings, provided that the actual 
eviction of a covered person for non-payment of rent does NOT take place during 
the period of the Order.”  [Doc. 43-1, p. 1] (first emphasis added).  As clarified by 
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the CDC, under the Order, landlords are therefore not precluded from serving their 
tenants with any required non-payment notices, commencing court proceedings, 
attending trials or obtaining judgments.  The Order only delays the actual eviction.   
The narrow issue thus presented in this case is whether a law that 
temporarily curtails the enforcement of an eviction order—not a plaintiff’s ability 
to secure that eviction order or pursue another type of action, like a breach of 
contract action—violates a plaintiff’s right to access the courts.   
The Supreme Court has indicated that there are two categories of claims 
involving the denial of access to courts.  Christopher v. Harbury, 536 U.S. 403, 
412-13 (2002).  The first category of cases involves systemic official action that 
frustrates a plaintiff or a class of plaintiffs in preparing and filing suits at the 
present time.  Id. at 413. 
In cases of this sort, the essence of the access claim is that 
official action is presently denying an opportunity to litigate for a 
class of potential plaintiffs.  The opportunity has not been lost for 
all time, however, but only in the short term; the object of the 
denial-of-access suit, and the justification for recognizing that 
claim, is to place the plaintiff in a position to pursue a separate 
claim for relief once the frustrating condition has been removed. 
 
Id.   The second category of claims involving the denial of access to courts “covers 
claims not in aid of a class of suits yet to be litigated, but of specific cases that 
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cannot now be tried (or tried with all material evidence), no matter what official 
action may be in the future.”  Id. at 413-14.   
While the circumstances vary for each category of claims, “the ultimate 
justification for recognizing each kind of claim is the same.”  Id. at 414.  “[T]he 
very point of recognizing any access claim is to provide some effective vindication 
for a separate and distinct right to seek judicial relief for some wrong.”  Id. at 414-
15.  Right of access cases “rest on the recognition that the right is ancillary to the 
underlying claim, without which a plaintiff cannot have suffered injury by being 
shut out of court.”  Id. at 415.  
In evaluating state-mandated eviction moratoriums as they relate to a right to 
access claim, two federal courts have held that the landlords failed to show that 
their rights to access the courts were violated.  In Elmsford Apartment Associates, 
LLC v. Cuomo, the court analyzed New York’s eviction moratorium, which 
completely barred landlords from filing eviction proceedings for the non-payment 
of rent.  No. 20-cv-4062 (CM), 2020 WL 3498456, at *4 (S.D.N.Y. June 29, 
2020).  Two primary reasons supported the court’s conclusion that the eviction 
moratorium did not implicate the constitutional right to access.  Id. at 16.  First, the 
court held that the landlords had not shown that the eviction moratorium had the 
actual effect of frustrating their efforts to pursue a legal claim because the 
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landlords could “still sue their tenants for arrearages through a breach of contract 
action.”  Id.  The eviction moratorium “suspended one of several avenues by which 
landlords can seek relief for nonpayment, while leaving other (if less favored) 
remedial proceedings for breach of contract (which is exactly what a breach of a 
lease is) in place.”  Id. at 17.   
Second, the court held that the “mere delay” to filing a lawsuit cannot form 
the basis of a constitutional violation “when the plaintiff will, at some point, regain 
access to legal process.”  Id. at 16.  Finding that the landlords’ opportunity to bring 
eviction proceedings was merely delayed because they could bring an action upon 
the moratorium’s expiration, the court denied the right to access claim.  Id.  The 
court concluded its analysis by stating that to rule that the eviction moratorium 
violates the constitutional right to access the courts “would greatly exaggerate the 
actual effects of a temporary pause on a subset of evictions, which nevertheless 
preserved the landlords’ economic rights under the affected rental agreements, and 
which was tailored to avoid crowding in housing courts and homeless shelters 
during an ongoing public health emergency.”  Id. at 17.  
Similarly, in Baptiste v. Kennealy, the court analyzed an eviction 
moratorium that barred landlords from filing and prosecuting eviction cases.  No. 
1:20-cv-11335-MLW, 2020 WL 5751572, at *25 (D. Mass. Sept. 25, 2020).  The 
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court determined that the landlords were not reasonably likely to prevail on their 
claim that “by temporarily removing access to the Housing Court to pursue the 
statutory summary procedures to evict, the [eviction moratorium] when enacted 
violated their constitutional right to access the courts.”  Id.  (implying that the 
“gravamen” of the landlords’ claim was “not total deprivation . . . but only delay”). 
Turning to an analysis of the federal eviction moratorium at issue in this 
case, for three different reasons, this Court finds that it does not violate Plaintiffs’ 
constitutional rights to access the courts.  First, the Order does not prohibit 
Plaintiffs from pursuing a breach of contract action either now or in the future.  
Accordingly, Plaintiffs still have some form of relief available to them within the 
courts.  While a breach of contract action is often not a landlord’s “preferred 
remedy,” the Order does not suspend a landlord’s right to this remedy in any 
manner whatsoever, and this is significant.  Elmsford, 2020 WL 3498456, at *16. 
Second, the Order is temporary; therefore, Plaintiffs’ ability to evict their 
tenants is only merely delayed until it expires on December 31, 2020, unless 
extended, modified or rescinded.  As recognized in Elmsford, “mere delay” to 
filing a lawsuit cannot form the basis of a constitutional violation, “when the 
plaintiff will, at some point, regain access to legal process.”  Id.  Here, it is clear 
that Plaintiffs will regain access to legal process upon expiration of the Order.  
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46 
Lastly, instead of completely foreclosing Plaintiffs’ rights to pursue an 
eviction, Plaintiffs can immediately start eviction proceedings now and are only 
delayed in enforcing any eviction order they might obtain.  It is noteworthy that, in 
this regard, the Order is even more narrow than the state eviction moratoriums 
analyzed in Elmsford and Baptiste, neither of which were found to have violated a 
landlord’s constitutional right to access the courts.  The moratoriums at issue in 
those cases completely prohibited landlords from even beginning an eviction 
proceeding.  This distinction is notable because the eviction process can be slow 
and cumbersome.  See Elmsford, 2020 WL 3498456, at *4.  Taking the New York 
state procedures discussed in Elmsford as an example, a landlord there must first 
serve the tenant with a notice of non-payment and give the tenant a chance to cure 
within fourteen days.  Id.  If the tenant does not cure within that time frame, the 
landlord can then commence summary non-payment proceedings by “filing a 
petition in the civil court, returnable by the tenant within [ten] days.”  Id.  In the 
event a tenant responds, a trial is set within an eight-day period but can be 
“adjourned up to ten additional days if the parties so require in order to produce 
their witnesses.”  Id.  If a warrant issues, the sheriff must then give the tenant 
another fourteen days’ notice in writing prior to the execution of the warrant.  Id.  
Only after all these steps are completed may a landlord remove a tenant from his 
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home.  Based on these numbers, the entire eviction process can be time-
consuming.   
As clarified by the CDC, the Order at issue here does not preclude landlords 
from starting eviction proceedings or from taking most of the follow-up steps in 
the process (like commencing court proceedings, attending trials or obtaining 
judgments)—all of which can take considerable time.  Thus, Plaintiffs here are less 
delayed than the landlords in Elmsford and Baptiste, where the entire eviction 
process was halted.  Under this Order, Plaintiffs can obtain an eviction order now, 
and once the Order is lifted, immediately evict their tenants, instead of waiting 
until the Order expires to begin the potentially lengthy process.    
Ultimately, because Plaintiffs are still permitted to file breach of contract 
actions and begin eviction proceedings, and are only merely delayed in enforcing 
eviction orders, this Court finds (for the same reasons explained in Elmsford and 
Baptiste) that Plaintiffs have not clearly shown a substantial likelihood of success 
on the merits as to their claim that the Order violates their constitutional rights to 
access the courts.    
B. Irreparable Injury 
“A showing of irreparable injury is the ‘sine qua non of injunctive relief.’”  
Siegel, 234 F.3d at 1176 (citation omitted).  Even if a plaintiff can show a 
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substantial likelihood of success on the merits, which is not the case here, “the 
absence of a substantial likelihood of irreparable injury would, standing alone, 
make preliminary injunctive relief improper.”  Id.  See also Northeastern Fla. 
Chapter of Ass’n of Gen. Contractors v. City of Jacksonville, 896 F.2d 1283, 
1285 (11th Cir. 1990) (holding that “[w]e need not address each element because 
we conclude that no showing of irreparable injury was made”); Commodities & 
Minerals Enter., Ltd. v. Citibank, N.A., No. 12-22333-CIV-UNGARO/TORRES, 
2012 WL 12844749, at *3 (S.D. Fla. Aug. 16, 2012) (declining to analyze the 
other preliminary injunction requirements where the plaintiff could not 
demonstrate that he would suffer irreparable harm).  In analyzing whether an 
injury is irreparable, the Eleventh Circuit has held that:   
[m]ere injuries, however substantial, in terms of money, time and 
energy necessarily expended in the absence of a stay are not 
enough.  The possibility that adequate compensatory or other 
corrective relief will be available at a later date, in the ordinary 
course of litigation, weighs heavily against a claim of irreparable 
harm. 
 
United States v. Jefferson Cnty., 720 F.2d 1511, 1520 (11th Cir. 1983).  The 
irreparable injury “must be neither remote nor speculative, but actual and 
imminent.”  Siegel, 234 F.3d at 1176.  Stated another way, “[t]he moving party 
must make a ‘clear showing’ of ‘substantial,’ ‘actual and imminent’ irreparable 
harm, as opposed to ‘a merely conjectural or hypothetical—threat of future 
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injury.’”  FHR TB, LLC v. TB Isle Resort, LP., 865 F. Supp. 2d 1172, 1206 (S.D. 
Fla. 2011) (citation omitted).    
Plaintiffs argue the following irreparable harms:  (1) violation of their 
constitutional rights; (2) noncompensable loss of the value of their property; and 
(3) deprivation of residential property.8  Each purported harm is addressed below.    
1. Violation of Constitutional Rights 
Plaintiffs argue that because the Order is unconstitutional, they need not 
show any additional harm to satisfy the irreparable injury requirement.  In other 
words, Plaintiffs argue that their constitutional rights were violated; thus, the 
irreparable injury requirement is automatically satisfied.  [Doc. 15-1, p. 36].  This 
Court disagrees.  Merely asserting a constitutional claim is insufficient to trigger a 
finding of irreparable harm. 
Plaintiffs cite only to General Contractors for the proposition that additional 
harm beyond a violation of a constitutional right need not be shown.  896 F.2d 
1283.  In that case, however, the Eleventh Circuit explicitly held that “[t]he only 
 
8 The final argument—deprivation of residential property as a per se irreparable harm—
was raised for the first time in Plaintiffs’ Reply Brief.  “[A]rguments raised for the first 
time in a reply brief are not properly before a reviewing court.”  Herring v. Sec’y, Dep’t. 
of Corr., 397 F.3d 1338, 1342 (11th Cir. 2005).  This Court, nevertheless, will consider 
the argument because Defendants were given the opportunity to address the issue at oral 
argument.     
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area of constitutional jurisprudence where we have said that an on-going violation 
constitutes irreparable injury is in the area of first amendment and right of privacy 
jurisprudence.”  Id. at 1285.  The court further explained that “[t]he rationale 
behind these decisions was that chilled free speech and invasions of privacy, 
because of their intangible nature, could not be compensated for by monetary 
damages; in other words, plaintiffs could not be made whole.”  Id.  This Court 
finds that the rationale for finding irreparable injury for certain constitutional 
violations does not apply in this case.  This case involves neither free speech nor 
invasion of privacy.  Furthermore, “the damage to [Plaintiffs] here is chiefly, if not 
completely, economic.”  Id. at 1286.     
2. Noncompensable Loss of the Value of Property  
Plaintiffs assert that the irreparable injury requirement is satisfied because 
they will never be able to recover economic damages that accrue while the Order is 
in place.  Specifically, Plaintiffs assert that their tenants are insolvent, and thus any 
judgment obtained against them would be uncollectible.  [Doc. 15-1, pp. 36-37].  
Defendants, on the other hand, contend that Plaintiffs’ fears that a judgment would 
not be collectible are “unsupported” and “speculative.”  [Doc. 22, p. 34].   
This Court will begin its review of Plaintiffs’ argument by analyzing United 
States v. Askins & Miller Orthopaedics, P.A., a recent decision from the Eleventh 
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Circuit squarely addressing, for the first time by the court, the issue of “whether 
the collectability of a future money judgment to cure an expected future injury 
matters.”  924 F.3d 1348, 1358 (11th Cir. 2019).   In Askins, the defendants 
habitually failed to pay their federal employment taxes.  Id. at 1351.  As a result, 
the Internal Revenue Service (“IRS”) asked the court for an injunction to protect it 
from the defendants’ future non-payment of taxes—taxes that the IRS knew it 
would never be able to collect.  Id. at 1358.   
The evidence presented in Askins showed that the defendants failed to pay 
their employment taxes from 2010 until 2017.  Id. at 1351.  During this seven-year 
period, the IRS made numerous attempts to collect the debt, including conducting 
thirty-four meetings and entering into installment agreements with the defendants 
and warning them of further legal action.  Id. at 1352.  The IRS even served levies 
on multiple entities, but most responded by indicating that there were no funds 
available to cover the debt.  Id.  The IRS’ collection efforts were made more 
difficult because the defendants unlawfully diverted their money to other accounts 
to avoid collection.  Id.   
In analyzing whether the IRS showed an irreparable harm, the court held that 
“‘extraordinary circumstances,’ including the likelihood that a defendant will never 
pay, [is] one way ‘to give rise to the irreparable harm necessary for a preliminary 
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injunction.’”  Id. at 1359 (citation omitted).  In the court’s opinion, the fact that the 
IRS was attempting to avoid future losses was important.  Id.  The court noted that 
as long as the defendants continued to accrue taxes, the IRS would continue to lose 
money, and this “sets the IRS apart from the position of other creditors (who can 
cut their losses by refusing to extend additional credit), and—crucially—means 
that the injunction sought is not simply an attempt to provide security for past 
debts.”  Id.  The court highlighted that the proposed injunction “would staunch the 
flow of ongoing future losses.”  Id.  Finding that irreparable harm was shown, the 
court stated that “[o]n these facts, the IRS’s ability to sit on its hands until the 
defendants fail to pay their taxes (again) and only then bring an action for money 
damages does not qualify as an ‘adequate’ legal remedy.”  Id. at 1358.  Ultimately, 
the court held that “the record amply demonstrates that, absent the requested 
injunction, the [IRS] will continue to suffer harm from [the defendants’] willful 
and continuing failure to comply with its employment tax obligations . . . and that, 
in all likelihood, the [IRS] will never recoup these losses.”  Id. at 1360.     
Therefore, in order to determine whether Plaintiffs will be irreparably 
harmed, this Court must analyze, under Askins, whether Plaintiffs have clearly 
shown that, in all likelihood, they will never recoup the losses that occur while the 
Order is in place.  The instant case presents some similarities to Askins but also 
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some important differences.  As to the similarities, Plaintiffs in this case are not 
seeking an injunction to ensure collection of a previous debt owed, but they are 
seeking injunctive relief to protect against future losses—the non-payment of rent 
during the time the Order is in place.  Like the IRS, Plaintiffs are not permitted to 
cut their losses, and so in that sense, Plaintiffs are involuntary creditors.  In other 
words, Plaintiffs are not, of their own volition, extending additional credit to their 
tenants but are instead forced to allow the tenants to stay in the homes without 
payment.   
Unlike Askins, where the IRS fully supported, with extensive evidence, its 
claim that a future judgment would not be collectible, Plaintiffs put very little 
evidence before this Court.  Specifically, the IRS in Askins presented evidence 
explaining the efforts they had undertaken to ensure that they received payment, 
including, but not limited to, making phone calls, conducting in-person meetings, 
entering into repayment plans and levying the defendants’ assets.  Significantly, 
the IRS was able to show that despite the collection efforts, it did not appear that 
the defendants would be able to satisfy the debts.  Moreover, the levies did not 
produce sufficient funds to satisfy the debts owed.  Here, however, Plaintiffs have 
not presented any evidence regarding collection measures that they have taken to 
ensure that the rent is paid or whether a legal tool, such as a levy or garnishment, 
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would be unsuccessful in the event a judgment is entered at a later time.  Plaintiffs 
have also presented no evidence that their tenants, like the defendants in Askins, 
would unlawfully divert funds to avoid the payment of a judgment.   
Another difference from Askins is the history of non-payment.  The record 
in Askins showed that the defendants habitually failed to pay their taxes for a 
period of seven years and would likely, in the opinion of the court, continue not to 
pay for years to come.  In this case, the tenants’ failures to pay are not nearly as 
extreme or pervasive.  Plaintiff Brown stated that his tenant has made no payments 
for several months.  [Doc. 18-2, p. 2].  Plaintiff Rondeau provided that his tenant 
has not paid any rent since July 6, 2020.  [Doc. 18-3, p. 1].  Similarly, Plaintiff 
Krauz’ tenant fell behind on rent in July 2020.  [Doc. 18-4, p. 1].  Lastly, Plaintiff 
Jones explained that her tenant is four months behind on rent.  [Doc. 18-5, pp. 1-2].  
It is much easier for a court to conclude that a debtor who has not paid for seven 
years will not pay in the future than it is for a court to conclude that a debtor who 
has recently stopped paying will continue the history of non-payment indefinitely, 
especially when the Order expires in only two months.   
Plaintiffs’ evidence that they will never be able to collect a future judgment 
is slight.  When asked during oral argument what evidence supports Plaintiffs’ 
conclusion that their tenants are insolvent, Plaintiffs’ counsel pointed to conditions 
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three and four of the tenants’ declarations9 and to the tenants’ failure to pay rent.  
[Doc. 47, pp. 8-10].  He explained that condition three requires that the tenants 
swear that they are unable to pay the full amount of rent due to a substantial loss of 
household income, loss of compensable hours of work or extraordinary out-of-
pocket medical expenses and that condition four requires the tenants to swear that 
they are using their best efforts to make timely partial payments.  Id.; see 
Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-
19, 85 Fed. Reg. at 55,293.  Plaintiffs’ counsel then concluded that because the 
tenants are currently not paying their rent, the circumstances show that they are 
insolvent or judgment proof. 10  [Doc. 47, pp. 8-10].  Plaintiffs presented no 
additional evidence regarding the tenants’ insolvency.   
This limited evidence is not enough for this Court to find that, in all 
likelihood, Plaintiffs’ tenants will not pay rent in the future and are judgment 
proof.  While it is undisputed that the tenants are currently delinquent on their rent, 
this Court does not know, for example, the occupation of any of the tenants, 
 
9 Only two tenants provided declarations to their landlords.   
10 Insolvency, as defined by Black’s Law Dictionary, means “[t]he condition of being 
unable to pay debts as they fall due or in the usual course of business.”  Insolvency, 
Black’s Law Dictionary (11th ed. 2019).  In the context of Plaintiffs’ argument, however, 
Plaintiffs seem to use the term insolvent to encompass not only the inability to pay debts 
that are owed, but also the inability to ever collect on those debts.   
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whether they are employed or unemployed (and, if unemployed, their prospect for 
reemployment), whether they are (or have been) sick, whether they have money in 
the bank, whether they qualify for some type of government assistance, whether 
they could obtain a loan to cover their rent or the nature of their credit histories.  
All of these things either affect a tenant’s ability to pay or demonstrate his 
likelihood to pay future rent or a judgment.  Plaintiffs also did not detail the efforts 
they have undertaken to collect the rent that is due or measures they will take once 
the Order is lifted.   
Plaintiffs’ lack of evidence precludes a finding of irreparable harm because 
it is the plaintiff who bears the burden to show a significant threat of irreparable 
harm, and a plaintiff cannot merely rely on remote or speculative injuries.  Ruffin 
v. Great Dane Trailers, 969 F.2d 989, 995 (11th Cir. 1992).  This Court finds that 
although the tenants may not currently be able to afford their rent due to a 
substantial loss of household income, loss of compensable hours of work or 
extraordinary out-of-pocket medical expenses, Plaintiffs have not shown that they 
will likely never be able to collect a judgment.  Here, Plaintiffs have failed to 
disprove that there is a real possibility that “adequate compensatory or other 
corrective relief will be available” to them later, in the ordinary course of litigation.  
Jefferson Cnty., 720 F.2d at 1520.  That alone “weighs heavily against a claim of 
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irreparable harm.”  Id.  Without more evidence concerning Plaintiffs’ tenants’ 
ability to pay rent or a future judgment, this Court finds that Plaintiffs’ conclusory 
arguments that their tenants will never pay is “too nebulous and speculative” to 
meet Plaintiffs’ burden of establishing irreparable harm.  FHR TB, 865 F. Supp. 2d 
at 1213-14 (rejecting as unsupported by the evidence the plaintiffs’ concerns that 
the defendant might not have the assets to satisfy a money damages judgment); see 
also HAPCO v. City of Philadelphia, No. 20-3300, 2020 WL 5095496, at *16-18 
(E.D. Pa. Aug. 27, 2020) (finding no irreparable harm suffered from a COVID-19 
eviction moratorium where the plaintiffs did nothing more than speculate that the 
“obvious result of a landlord’s inability to immediately collect all payments owed 
under the lease [would] lead to foreclosure”); Amato v. Elicker, No. 3:20-cv-464 
(MPS), 2020 WL 2542788, at *6 (D. Conn. May 19, 2020) (finding no irreparable 
harm where the plaintiffs only speculated that their business would be forced to 
permanently shut down as a result of a COVID-19 restriction).   
Two other considerations bolster this Court’s view that Plaintiffs have not 
clearly shown an irreparable injury.  First, the Order has protections for the 
landlords.  Specifically, landlords are not precluded from charging or collecting 
fees, penalties or interest as a result of the failure to pay rent on a timely basis.  
Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-
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19, 85 Fed. Reg. at 55,292.  Landlords can also continue to seek arrears and tenants 
are required to make partial payments when able.  Id. at 55,293.   
Second, it is conceivable that the passage of time alone may repair Plaintiffs’ 
injuries if either Plaintiffs’ tenants or Plaintiffs themselves obtain government 
assistance.  In particular, the tenants may obtain rental assistance from the federal 
government or receive a disbursement of unemployment benefits.  [Doc. 33-1, p. 
7].  And, Plaintiffs may obtain funds pursuant to the Coronavirus Aid, Relief, and 
Economic Security (CARES) Act (Pub. L. 116-136), which aids individuals and 
businesses adversely affected by COVID-19.11   
The above finding that Plaintiffs have failed to present enough evidence to 
show an irreparable harm is not meant to discount the fact that Plaintiffs are 
currently being harmed.  Because of the Order, Plaintiffs are forced to provide 
housing to non-paying tenants.  Not only are they harmed from the tenants’ failure 
to pay rent and other fees, Plaintiffs must also pay monthly maintenance costs and 
endure damage to their property from wear and tear, and they have lost the 
 
11 Plaintiffs’ counsel stated during oral argument that while none of the individual 
plaintiffs had received government assistance, some of the members of Plaintiff NAA 
may have applied for assistance under the CARES Act.  [Doc. 47, pp. 39-40].  See 
HAPCO, 2020 WL 5095496, at *17 (discussing numerous programs available to 
landlords).   
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opportunity to rent their properties at fair market value.12  [Doc. 18, p. 9].  While 
these harms are both concerning and significant to the Court, Plaintiffs simply have 
not met their burden to make a clear showing that their injury is noncompensable, 
and thus irreparable.    
3. Deprivation of Residential Property 
 
Plaintiffs assert that they have been wrongly deprived of access to their 
unique property and have thus been irreparably harmed because “courts across the 
country have recognized that being deprived of residential property is a per se 
irreparable injury.”  [Doc. 38-1, pp. 11-12].  None of the cases cited by Plaintiffs, 
however, compel a categorical finding that Plaintiffs have suffered an irreparable 
harm.  Plaintiffs’ cases are inapposite because all involve permanent deprivation or 
destruction of property.  For instance, in one of the cases, if an injunction did not 
issue, the moving party would have been forced to sell the subject property—a 
church.  Third Church of Christ, Scientist v. City of New York, 617 F. Supp. 2d 
201, 215 (S.D.N.Y. 2008).  In another case, the moving party would have been 
forced to sell the family farm.  Watson v. Perdue, 410 F. Supp. 3d 122, 131 (D.C. 
 
12 Robert Pinnegar, who is the CEO of Plaintiff NAA, explained in his affidavit that “the 
vast majority of rental housing in the United States is owned by small investors who use 
the rental income to supplement retirement plans and social security payments” and that 
the rental income is “disappearing.”  [Doc. 18-6, p. 2].  
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Cir. 2019).  In that case, the court noted that “losing a family farm is more than just 
an economic loss.  It involves the loss of generations of family history, sweat-
equity, and memories.”  Id.   
After review, this Court is unpersuaded that the “loss of real property, 
without some other unique factor attributed to the property, is a per se irreparable 
injury.”  Muck Miami, LLC v. United States, No. 14-24870-Civ-
COOKE/TORRES, 2015 WL 12533140, at *3 (S.D. Fla. Feb. 13, 2015).  “As it 
pertains to real estate, an ‘irreparable injury is suffered when one is wrongfully 
ejected from his home.’”  Id. at *4 (citation omitted).  That situation is not alleged 
here.  Each of the individual plaintiffs provided an affidavit showing that they 
owned property that they leased to tenants.  There is no evidence before the Court 
that any of the individual plaintiffs reside in the properties or are in danger of 
losing those properties.  In the situation alleged here, where the residential property 
is used as a rental property, Plaintiffs have not clearly shown that monetary 
damages will not afford adequate relief.       
  
As explained above, Plaintiffs raise three possible irreparable injuries.  
After considering those alleged injuries, this Court finds that Plaintiffs have not 
met their burden to clearly show an irreparable injury.  Solely on this ground, this 
Court finds injunctive relief improper, even if Plaintiffs were able to satisfy any 
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of the other prerequisites.  See Siegal, 234 F.3d at 1176 (finding that the absence 
of a substantial likelihood of an irreparable injury, standing alone, prohibits 
preliminary injunctive relief).  
C. The Threatened Injury and the Harm the Preliminary Injunction 
Would Cause to the Non-Movant and the Public Interest 
 
This Court will analyze the final two factors together:  harm to the 
opposing party and the public interest.  “[W]here the government is the party 
opposing the preliminary injunction, its interest and harm merge with the public 
interest.”  Swain v. Junior, 958 F.3d 1081, 1091 (11th Cir. 2020).  Thus, the 
Court proceeds with analyzing whether the threatened injury to Plaintiffs 
outweighs the harm that the preliminary injunction would cause Defendants and 
the public.  
 
Plaintiffs devote very little time to analyzing whether their threatened 
injury outweighs the harm that the preliminary injunction would cause 
Defendants and the public.  This is important because it is Plaintiffs who bear the 
burden of clearly showing that the threatened injury outweighs the harm an 
injunction might cause.  Plaintiffs contend that the balance of equities weighs 
heavily in their favor because a strong public interest exists that constitutional 
rights are not violated.  [Doc. 15-1, p. 38].  This Court has already explained, 
however, that Plaintiffs have not clearly shown a substantial likelihood of success 
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62 
on the merits as to their claims that their constitutional rights are violated.  See 
discussion infra Part II.A.3.  Plaintiffs further contend that the CDC has “no 
evidence, much less any convincing argument, that its Order has any effect on the 
pandemic or would prevent even a single infection.”  [Doc. 45, p. 25].  This 
argument has also already been addressed, and rejected, by the Court.  See 
discussion infra Part II.A.2.i-ii.          
In evaluating whether the threatened injury of various state-mandated 
COVID-19 restrictions would outweigh the damage to the public’s interest if they 
were overturned, federal courts across the country have routinely concluded that 
undoing orders deemed necessary by public health officials and experts to contain 
a contagious and fast-spreading disease would result in comparatively more severe 
injury to the community.  For example, while the Sixth Circuit acknowledged in 
League of Independent Fitness Facilities & Trainers, Inc. v. Whitmer that 
“[s]haping the precise contours of public health measures entails some difficult 
line-drawing” and that the plaintiffs bore “the very real risk of losing their 
businesses,” it ultimately granted an emergency stay of a lower court decision that 
had invalidated a COVID-19 executive order.  814 F. App’x 125, 129-30 (6th Cir. 
2020).  The court reasoned that “the Governor’s interest in combatting COVID-19 
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[was] at least equally significant,” where “the disease ha[d] infected thousands of 
[residents], and it ha[d] shown the potential to infect many more.”  Id. 
Likewise, in Roman Catholic Diocese v. Cuomo, the court emphasized that 
its refusal to issue an injunction was not intended “to downplay the seriousness of 
[the] [plaintiff’s] constitutional harm,13 which [was] unlikely to be remedied” and 
explained that, rather, improperly enjoining an order designed “to contain a deadly 
and highly contagious disease” could lead to “avoidable death on a massive scale.”  
No. 20-cv-4844, 2020 WL 6120167, at *11 (E.D.N.Y. Oct. 16, 2020).  See also 
Auracle Homes, LLC v. Lamont, No. 3:20-cv-00829, 2020 WL 4558682, at *21 
(D. Conn. Aug. 7, 2020) (finding that “the balance of the equities and the public 
interest favor[ed] denying a preliminary injunction” that would block an eviction 
moratorium entered to address the COVID-19 pandemic); TJM 64, Inc. v. Harris, 
No. 2:20-cv-02498, 2020 WL 4352756, at *8 (W.D. Tenn. July 29, 2020) 
(determining that an injunction reversing a restriction on the operation of gyms 
would be contrary to the public interest because “[p]reventing [the] [d]efendants 
from enforcing the [o]rder would present a risk of serious public harm and foster 
the continued spread [of the] COVID-19 virus”); World Gym, Inc. v. Baker, No. 
20-cv-11162, 2020 WL 4274557, at *5 (D. Mass. July 24, 2020) (finding that the 
 
13 Curtailed in-person church services.   
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64 
public interest outweighed the plaintiffs’ threatened economic loss because the 
respective orders were necessary to combat a “devastating” “global health crisis” 
that had taken numerous lives); Xponential Fitness v. Arizona, No. cv-20-01310, 
2020 WL 3971908, at *11 (D. Ariz. July 14, 2020) (deciding that “the public’s 
interest in controlling the spread of COVID-19 outweigh[ed] its interest in 
preventing the constitutional violations alleged” and declining to issue an 
injunction because “otherwise avoidable human suffering” would result).  
Here, Defendants have shown that COVID-19 is an easily transmissible, 
potentially serious and sometimes fatal disease.  See Temporary Halt in 
Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 
at 55,292.  As of October 8, 2020, the United States had documented over 7.5 
million cases and 211,000 deaths, and the evidence presented shows that mass 
evictions could have dire consequences in this circumstance.  [Doc. 33-1, p. 17].  
This includes evidence of an anticipated surge in infections because displaced 
tenants may be forced into crowded living quarters or homeless shelters, where 
compliance with public health guidelines, including social distancing and self-
quarantining, is impossible.  Temporary Halt in Residential Evictions to Prevent 
the Further Spread of COVID-19, 85 Fed. Reg. at 55,294.  In other words, the 
consequences of eviction (overcrowding, homelessness and housing instability) 
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65 
undermine crucial strategies for containing COVID-19.  And the deleterious 
effect is not limited to the millions who might be evicted, it extends to the 
community at large. 
On the other hand, Plaintiffs have alleged two harms:  (1) constitutional 
harm in the form of a violation of the right to access the courts; and (2) economic 
harm, which includes unpaid rent.  As to the constitutional harm, Plaintiffs failed 
to show that they were substantially likely to succeed on that claim.  Even if 
Plaintiffs did show a constitutional violation, the showing would not be enough to 
outweigh the public interest.  Although Plaintiffs have shown an economic harm, 
that economic harm pales in comparison to the significant loss of lives that 
Defendants have demonstrated could occur should the Court block the Order.  
Accordingly, the Court finds that the public’s interest in controlling the spread of 
COVID-19 in not outweighed by Plaintiffs’ interests in preventing the 
constitutional violation and economic harm alleged here.14   
 
 
14 Like the court in League of Independent Fitness Facilities, this Court sympathizes with 
the persons affected by the Order.  As that court explained, “[c]rises like COVID-19 can 
call for quick, decisive measures to save lives.  Yet those measures can have extreme 
costs—costs that often are not borne evenly.  The decision [on how] to impose [and 
allocate] those costs rests with the [other] branches of government, in this case, [the 
CDC,]” and not with this Court.  814 F. App’x at 130. 
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CONCLUSION 
Although this pandemic has adversely affected Plaintiffs’ rental 
businesses—as it has much of the nation’s economy—Plaintiffs have failed to 
satisfy the standards necessary for obtaining a preliminary injunction as a matter 
of law.  After thoroughly reviewing the record and the evidence cited therein, 
this Court finds that Plaintiffs have not clearly established their burden of 
persuasion as to any of the four prerequisites.  Accordingly, Plaintiffs’ Motion 
for Preliminary Injunction [Doc. 18] is DENIED.   
SO ORDERED this 29th day of October, 2020. 
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