Court filing
Defendants' Opposition to Motion for Injunction Pending Appeal — Brown v. Azar (N.D. Ga.)
Filed November 23, 2020 in Brown v. Azar; one of 20 filings from this case.
Record facts
| Court | U.S. District Court for the Northern District of Georgia |
|---|---|
| Filed | 2020-11-23 |
U.S. District Court for the Northern District of Georgia · No. 1:20-cv-03702-JPB · Doc. 58 · 2020-11-23 · Docket on CourtListener
Full text
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IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF GEORGIA
ATLANTA DIVISION
RICHARD LEE BROWN, et al.,
Plaintiffs,
v.
ALEX AZAR, in his official capacity as
Secretary, U.S. Department of Health
& Human Services, et al.,
Defendants.
Case No. 1:20-cv-3702-JPB
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO
PLAINTIFFS’ MOTION FOR INJUNCTION PENDING APPEAL
In a comprehensive opinion, this Court denied Plaintiffs’ motion for a
preliminary injunction because Plaintiffs had made none of the required
showings: they failed to show a substantial likelihood of success on the merits
on any claim, see Prelim. Inj. Order at 15-47 (“PI Order”), ECF No. 48; failed to
show a substantial likelihood of irreparable injury, see id. at 47-61; and failed to
show that the balance of the equities or the public interest weighed in their favor,
see id. at 61-65. Plaintiffs’ motion for an injunction pending appeal, see Pls.’ Mot.
Case 1:20-cv-03702-JPB Document 58 Filed 11/23/20 Page 1 of 7
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for Inj. Pending Appeal (“Mot.”), ECF No. 51, is subject to the same legal
standards, and the Court should deny it for the same reasons.
ARGUMENT
To obtain the “extraordinary remedy” of an injunction pending appeal,
plaintiffs must show “(1) a substantial likelihood that they will prevail on the
merits of the appeal; (2) a substantial risk of irreparable injury . . . unless the
injunction is granted; (3) no substantial harm to other interested persons; and
(4) no harm to the public interest.” Touchston v. McDermott, 234 F.3d 1130, 1132
(11th Cir. 2000) (en banc). As with a preliminary injunction, “[f]ailure to show
any of the four factors is fatal.” United States v. Alabama, 443 F. App’x 411, 419
(11th Cir. 2011) (unpub.) (quoting Am. Civil Liberties Union of Fla., Inc. v. Miami-
Dade Cty. Sch. Bd., 557 F.3d 1177, 1198 (11th Cir. 2009)).
Plaintiffs acknowledge that this Court already “refused to enter a
preliminary injunction, in part, because it determined that ‘Plaintiffs have not
clearly shown a substantial likelihood of success on the merits.’” Mot. at 4
(quoting PI Order at 29). Plaintiffs maintain that they may nevertheless obtain an
injunction pending appeal because, in their view, Circuit precedent permits entry
of an injunction pending appeal “‘upon a lesser showing of a substantial case on
Case 1:20-cv-03702-JPB Document 58 Filed 11/23/20 Page 2 of 7
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the merits when the [remaining factors] weigh[] heavily in favor of granting the
stay.’” Mot. at 3 (quoting Garcia-Mir v. Meese, 781 F.2d 1450, 1453 (11th Cir. 1986)
(citations omitted)). Plaintiffs’ argument fails for three independent reasons.
First, more recent precedent from the en banc Eleventh Circuit provides
that a party seeking an injunction pending appeal must show “a substantial
likelihood that they will prevail on the merits of the appeal.” Touchston, 234 F.3d
at 1132; see also Alabama, 443 F. App’x at 419 (failure to satisfy any one factor is
“fatal”). Such precedent does not contemplate the entry of an injunction
whenever the legal issues are “arguable.” Mot. at 4. Nor would it make sense, as
a matter of first principles, to put district courts in the position of routinely
denying preliminary injunctions under one standard only to immediately grant
injunctions pending appeal under a different one.
Second, even under Plaintiffs’ test, Plaintiffs have not raised a substantial
question on any of their claims. To the contrary, in rejecting Plaintiffs’
contention that the Order fell outside CDC’s statutory authority, the Court ruled
that “Congress’ intent, as evidenced by the plain language of the delegation
provision, is clear,” such that “the CDC was authorized to issue it.” PI Order at
19. And while the Court recognized that it “could rest its conclusion on this
Case 1:20-cv-03702-JPB Document 58 Filed 11/23/20 Page 3 of 7
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basis alone,” id., it went on to explain how “[f]urther analysis amplifies the flaws
in Plaintiffs’ arguments,” id. at 20. Similarly, in rejecting Plaintiffs’ claim that the
order was arbitrary and capricious, the Court explained that it “disagrees with
Plaintiffs because the Order explains, in detail, why a temporary eviction
moratorium is reasonably necessary.” Id. at 32; see also id. at 36 (“Simply put, the
CDC has shown what it needs to . . . .”). Finally, the Court identified “three
different reasons” for rejecting Plaintiffs’ access-to-courts claim, id. at 45,
including landlords’ ability to pursue a breach of contract action, the Order’s
temporary duration, and landlords’ ability to commence eviction proceedings
during the pendency of the Order, id. at 45-47.1 The Court gave no indication
that it thought any of these issues were particularly close calls—and indeed, they
are not.
Third, even if a substantial question on the merits could justify an
injunction pending appeal, and even if Plaintiffs had identified such a question,
Plaintiffs acknowledge that under their test they would still need to demonstrate
1 Indeed, the motion that Plaintiffs filed seeking identical relief from the Eleventh
Circuit does not advance this claim. See Mot. for Inj. Pending Appeal, Brown v.
Azar, No. 20-14210 (11th Cir. Nov. 12, 2020).
Case 1:20-cv-03702-JPB Document 58 Filed 11/23/20 Page 4 of 7
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that the remaining factors “weigh[] heavily” in their favor to obtain an
injunction. Mot. at 3. Yet Plaintiffs make no effort to challenge this Court’s
rulings that they failed to establish irreparable harm and that the balance of the
equities and the public interest weighed against them. Plaintiffs merely point to
the Court’s observation that the harms alleged by Plaintiffs were “concerning
and significant to the Court,” PI Order at 59, an aside offered immediately before
the Court’s conclusion that “Plaintiffs simply have not met their burden to make
a clear showing that their injury is noncompensable, and thus irreparable.” Id.
The Court’s unchallenged holdings that Plaintiffs failed to demonstrate
irreparable harm and that the balance of the equities weighed against them
further doom their request for an injunction pending appeal.
* * *
In light of the Court’s prior rulings, Plaintiffs surely do not expect this
Court to grant their motion for an injunction pending appeal. Rather, they
apparently filed this motion for one reason alone: they could not ask the
Eleventh Circuit for such an injunction without first asking this Court. See Fed.
R. App. P. 8(a)(1)(C). Plaintiffs’ motion in this Court has thus already served its
purpose: Plaintiffs have checked their procedural box, and indeed they have
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already filed their motion in the Eleventh Circuit, which will resolve it as it sees
fit. This Court, however, should deny Plaintiffs’ latest motion for the reasons it
has previously given.
CONCLUSION
Plaintiffs’ motion for an injunction pending appeal should be denied.
Dated: November 23, 2020
Respectfully submitted,
JEFFREY BOSSERT CLARK
Acting Assistant Attorney General
ERIC BECKENHAUER
Assistant Director, Federal Programs
Branch
/s/ Steven A. Myers
STEVEN A. MYERS
Senior Trial Counsel (NY Bar No.
4823043)
LESLIE COOPER VIGEN
Trial Attorney (DC Bar No. 1019782)
United States Department of Justice
Civil Division, Federal Programs
Branch
1100 L Street, NW
Washington, DC 20005
Tel: (202) 305-8648
Fax: (202) 616-8470
E-mail: steven.a.myers@usdoj.gov
Counsel for Defendants
Case 1:20-cv-03702-JPB Document 58 Filed 11/23/20 Page 6 of 7
CERTIFICATE OF COMPLIANCE
I hereby certify, pursuant to Local Rules 5.1 and 7.1(D), that I prepared the
foregoing brief using Book Antiqua, 13-point font.
/s/ Steven A. Myers
STEVEN A. MYERS
United States Department of Justice
CERTIFICATE OF SERVICE
I hereby certify I served this document today by filing it using the Court’s
CM/ECF system, which will automatically notify all counsel of record.
Dated: November 23, 2020
/s/ Steven A. Myers
STEVEN A. MYERS
United States Department of Justice
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