Court filing
Plaintiffs' Brief — Motion for Preliminary Injunction — Chambless v. Redfield (W.D. La.)
Filed November 12, 2020 in Chambless v. Redfield; one of 23 filings from this case.
Record facts
| Court | UNITED STATES DISTRICT COURT |
|---|---|
| Filed | 2020-11-12 |
UNITED STATES DISTRICT COURT · No. 3:20-cv-01455-TAD-KLH · Doc. 5-1 · 2020-11-12 · Docket on CourtListener
Full text
IN THE UNITED STATES DISTRICT COURT
FOR THE WESTERN DISTRICT OF LOUISIANA
MONROE DIVISION
CHAMBLESS ENTERPRISES LLC; and
APARTMENT ASSOCIATION OF
LOUISIANA, INC.,
Plaintiffs,
v.
CENTERS FOR DISEASE CONTROL
AND PREVENTION; ROBERT R.
REDFIELD, in his official capacity as
Director, Centers for Disease Control and
Prevention; NINA B. WITKOFSKY, in her
official capacity as Acting Chief of Staff,
Centers for Disease Control and Prevention;
ALEX AZAR, in his official capacity as
Secretary of Health and Human Services;
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; WILLIAM P. BARR,
in his official capacity as Attorney General of
the United States,
Defendants.
Case No. 3:20-cv-01455 J
Judge Terry A. Doughty
Magistrate Judge Karen L Hayes
MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
Case 3:20-cv-01455-TAD-KLH Document 5-1 Filed 11/12/20 Page 1 of 33 PageID #: 55
i
TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 2
ARGUMENT .................................................................................................................................. 3
I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ..................................... 3
A.
The order exceeds the CDC’s statutory and regulatory authority ................................... 3
1.
The text of the statute and regulation confine the CDC’s action to conventional,
specific disease-prevention measures that do not involve extensive control over
human activity .......................................................................................................... 5
2.
Interpretive presumptions regarding congressional intent favor a narrow
reading of the statute .............................................................................................. 11
a.
Congress did not clearly state that it intended to alter the
state-federal balance ............................................................................................ 12
b.
The CDC’s broad interpretation of its authority would create severe
constitutional concerns ........................................................................................ 12
c.
The CDC’s broad interpretation of its authority would violate the
rule of lenity ........................................................................................................ 15
B.
If the statute can be read broadly enough to authorize an eviction moratorium, then it
violates the non-delegation doctrine. ............................................................................ 16
C.
The CDC’s Eviction Moratorium Violates the Administrative Procedure Act ............ 18
II.
WITHOUT AN INJUNCTION, PLAINTIFFS WILL SUFFER
IRREPARABLE HARM. ................................................................................................. 19
III. THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH
IN PLAINTIFFS’ FAVOR. .............................................................................................. 22
CONCLUSION ............................................................................................................................. 24
CERTIFICATE OF SERVICE ......................................................................................................25
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ii
TABLE OF AUTHORITIES
Page(s)
Cases
A.L.A Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) ...........................................................................................................16, 18
Abramski v. United States,
573 U.S. 169 (2014) .................................................................................................................16
Adams & Boyle, P.C. v. Slatery,
956 F.3d 913 (6th Cir. 2020) ...................................................................................................23
Ali v. Federal Bureau of Prisons,
552 U.S. 214 (2008) ...................................................................................................................5
Allied Mktg. Grp., Inc. v. CDL Mktg., Inc.,
878 F.2d 806 (5th Cir.1989) ....................................................................................................22
Armstrong v. United States,
364 U.S. 40 (1960) ...................................................................................................................23
Awad v. Ziriax,
670 F.3d 1111 (10th Cir.2012) ................................................................................................22
Azar v. Allina Health Servs.,
139 S. Ct. 1804 (2019) .............................................................................................................19
Basicomputer Corp. v. Scott,
791 F. Supp. 1280 (N.D. Ohio 1991), aff’d, 973 F.2d 507 (6th Cir. 1992) .............................22
BE & K Constr. Co. v. NLRB,
536 U.S. 516 (2002) .................................................................................................................14
Bond v. United States,
564 U.S. 211 (2011) .................................................................................................................20
Borough of Duryea, Pa. v. Guarnieri,
564 U.S. 379 (2011) .................................................................................................................14
Boumediene v. Bush,
553 U.S. 723 (2008) .................................................................................................................20
Brown v. Azar,
No. 1:20-CV-03702-JPB, 2020 WL 6364310 (Oct. 29, 2020) ................................................11
Case 3:20-cv-01455-TAD-KLH Document 5-1 Filed 11/12/20 Page 3 of 33 PageID #: 57
iii
Burlington Truck Lines v. United States,
371 U.S. 156 (1962) .................................................................................................................19
California Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508 (1972) .................................................................................................................15
Carpenter Tech. Corp. v. City of Bridgeport,
180 F.3d 93 (2d Cir. 1999).......................................................................................................21
Christopher v. Harbury,
536 U.S. 403 (2002) ...........................................................................................................20, 23
Circuit City Stores, Inc. v. Adams,
532 U.S. 105 (2001) .............................................................................................................6, 11
Clinton v. City of New York,
524 U.S. 417 (1998) ................................................................................................................20
Crowell v. Benson,
285 U.S. 22 (1932) ...................................................................................................................12
CSX Transp., Inc. v. Alabama Dep’t of Revenue,
562 U.S. 277 (2011) ...................................................................................................................7
Deerfield Med. Ctr. v. City of Deerfield Beach,
661 F.2d 328 (5th Cir. 1981) ...................................................................................................20
Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn.,
274 F.3d 377 (6th Cir. 2001) ...................................................................................................22
East Tennessee Nat. Gas Co. v. Sage,
361 F.3d 808 (4th Cir. 2004) ...................................................................................................21
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ...................................................................................................................3
Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) .................................................................................................................20
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n,
23 F.3d 1071 (6th Cir. 1994) ...................................................................................................22
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc.,
549 F.3d 1079 (7th Cir. 2008) .................................................................................................21
Gordon v. Holder,
721 F.3d 638 (D.C. Cir. 2013) .................................................................................................22
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iv
Gregory v. Ashcroft,
501 U.S. 452 (1991) .................................................................................................................12
Gundy v. United States,
139 S. Ct. 2116 (2019) .............................................................................................................16
Heil Trailer Intern. Co. v. Kula,
542 Fed.Appx. 329 (5th Cir. 2013) ..........................................................................................22
Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp.,
17 F.3d 691 (4th Cir. 1994) .....................................................................................................22
Jackson Women’s Health Org. v. Currier,
760 F.3d 448 (5th Cir. 2014) ...................................................................................................22
Johnson v. Couturier,
572 F.3d 1067 (9th Cir. 2009) .................................................................................................24
K-Mart Corp. v. Oriental Plaza, Inc.,
875 F.2d 907 (1st Cir. 1989) ....................................................................................................21
Kaiser Aetna v. United States,
444 U.S. 164 (1979) .................................................................................................................21
Kungys v. United States,
485 U.S. 759 (1988) ............................................................................................................7, 11
Lakedreams v. Taylor,
932 F.2d 1103 (5th Cir. 1991) .................................................................................................22
Louisiana Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986) ...................................................................................................................4
McBoyle v. United States,
283 U.S. 25, 27 (1931) ...............................................................................................................6
Midwest Institute of Health v. Governor of Michigan,
No. 161492, slip op. (Mich. S. Ct. Oct. 2, 2020) .....................................................................18
Minard Run Oil Co. v. U.S. Forest Service,
670 F.3d 236 (3d Cir. 2011).....................................................................................................21
Moltan Co. v. Eagle Picher Indus., Inc.,
55 F.3d 1171 (6th Cir. 1995) ...................................................................................................24
Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ...................................................................................................................19
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v
New York v. United States,
505 U.S. 144 (1992) .................................................................................................................14
NFIB v. Sebelius,
567 U.S. 519 (2012) .................................................................................................................14
Norfolk & Western R. Co. v. Train Dispatchers,
499 U.S. 117 (1991) ...................................................................................................................5
Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279 (5th Cir. 2012) ...................................................................................................22
P.J.E.S. v. Wolf,
No. 1:20-cv-2245, 2020 WL 5793305 (D.D.C. Sept. 25, 2020) ..............................................13
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) .................................................................................................................16
Perez v. Mortg. Bankers Ass'n,
575 U.S. 92 (2015) ...................................................................................................................19
Pike v. Bruce Church, Inc.,
397 U.S. 137 (1970) .................................................................................................................23
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati,
822 F.2d 1390 (6th Cir. 1987) .................................................................................................22
Productos Carnic, S.A. v. Central American Beef and Seafood Trading Co.,
621 F.2d 683 (5th Cir. 1980) ...................................................................................................21
Professionals & Patients for Customized Care v. Shalala,
56 F.3d 592 (5th Cir. 1995) .....................................................................................................19
Rewis v. United States,
401 U.S. 808 (1971) .................................................................................................................15
Richard v. Broussard,
495 So.2d 1291 (La. 1986) ......................................................................................................24
Ridgley v. Federal Emergency Management Agency,
512 F.3d 727 (5th Cir. 2008) .............................................................................................19, 21
RoDa Drilling Co. v. Siegal,
552 F.3d 1203 (10th Cir. 2009) ...............................................................................................21
Salinas v. United States,
522 U.S. 52 (1997) ...................................................................................................................12
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vi
Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001) .................................................................................................................12
Sure-Tan, Inc. v. NLRB,
467 U.S. 883 (1984) .................................................................................................................14
Synar v. United States,
626 F. Supp. 1374 (D.D.C. 1986) ............................................................................................18
Texas v. United States,
809 F.3d 134 (5th Cir. 2015) ...................................................................................................18
United States v. Butler,
297 U.S. 1 (1936) .....................................................................................................................10
United States v. Kaluza,
780 F.3d 647 (5th Cir. 2015) ...........................................................................................5–6, 11
United States v. Lopez,
514 U.S. 549 (1995) .................................................................................................................13
United States v. Robel,
389 U.S. 258 (1967) ................................................................................................................18
United States v. Santos,
553 U.S. 507 (2008) .................................................................................................................15
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .............................................................................................................4, 18
Winter v. Nat’l Res. Def. Council,
555 U.S. 7 (2008) .................................................................................................................3, 19
Yates v. United States,
574 U.S. 528 (2015) ...................................................................................................5–7, 11, 15
Statutes
5 U.S.C. § 706 ................................................................................................................................19
18 U.S.C. § 1115 ..............................................................................................................................5
20 U.S.C. § 3508 ..............................................................................................................................3
42 U.S.C. § 264 ..........................................................................................................3, 8, 12, 17–18
42 U.S.C. § 264(a) .....................................................................................1, 3, 4, 6, 8–9, 13, 16–17
42 U.S.C. § 264(b)–(d) ....................................................................................................................8
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42 U.S.C. § 264(e) ...................................................................................................................10, 12
42 U.S.C. § 265 ..............................................................................................................................13
La. Civ. Code Ann. art. 4701 .........................................................................................................20
Pub. L. No. 116-136, § 4024 (2020) ................................................................................................8
Constitutions
U.S. Const. amend. I ......................................................................................................................14
U.S. Const. amend. X.....................................................................................................................14
U.S. Const. art. I, § 1......................................................................................................................16
Rule
Fed. R. Civ. P. 65 ...........................................................................................................................24
Other Authorities
31 Fed. Reg. 8855 (June 25, 1966) ..................................................................................................3
42 C.F.R. § 70.2 .........................................................................................................1, 3–4, 6, 8–10
85 Fed. Reg. 55,292 (Sept. 4, 2020) ......................................................................................2, 9–10
H.R. Rep. No. 78-1364 (1944) .........................................................................................................7
Kelley, William K., Avoiding Constitutional Questions as a Three-Branch
Problem, 86 Cornell L. Rev. 831 (2001) .................................................................................15
Scalia, Antonin & Garner, Bryan, Reading Law: The Interpretation of Legal Texts
(Thompson/West 2012) .......................................................................................................5, 15
Schumaker, Erin, Timeline: How Coronavirus Got Started, ABC News,
https://abcnews.go.com/Health/timeline-coronavirus-
started/story?id=69435165 .......................................................................................................19
Van Someren Greve, Robert, Protecting Tenants Without Preemption, 25 Geo. J.
on Poverty L. & Pol’y 135 (2017) ...........................................................................................12
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1
INTRODUCTION
On September 4, 2020, the CDC imposed a ban on evictions that purports to reorder lease
agreements nationwide and to suspend adjudication of landlords’ contractual rights. The CDC’s
eviction moratorium represents a sweeping assumption of power that the CDC does not possess.
The laws and regulations on which the CDC relies, primarily section 361 of the Public Health
Service Act, 42 U.S.C. § 264(a), and 42 C.F.R. § 70.2, allow the CDC to take the sorts of actions
one would expect from a federal agency that was established to control disease. For example, the
CDC is permitted to inspect, fumigate, disinfect, sanitize, exterminate pests, and destroy animals
or articles when necessary to prevent the spread of disease across state lines. See 42 C.F.R. § 70.2.
Like many statutes and regulations, these provisions allow the CDC to take other
“reasonably necessary” measures to accomplish the laws’ purposes. 42 C.F.R. § 70.2. But if such
commonplace language can be read to allow the CDC to impose a nationwide eviction moratorium,
then it would allow the CDC to regulate any activity in the nation that might help stem the spread
of COVID-19. Such an interpretation would not only render superfluous the powers Congress gave
HHS and CDC under the law, it would constitute a grant of authority to these agencies to make
law. But Congress did not grant the CDC this extraordinary power.
Plaintiffs are landlords (or represent landlords) who have held up their end of their lease
agreements, only to be told, eight months after the pandemic began, that the CDC has decided their
tenants need not hold up their end of the bargain. Plaintiffs recognize that the pandemic poses an
extreme challenge for the nation. Like every American, they have felt the impact of the pandemic.
Unlike most Americans, however, they are now being singled out by the federal government to
bear disproportionate costs of fighting the pandemic. This treatment would be unjust under any
circumstance, but it is particularly unjust when imposed by an agency for which the Plaintiffs did
not vote and about whose policies they had no say.
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STATEMENT OF FACTS
In early September, the CDC promulgated an Order titled “Temporary Halt in Residential
Evictions to Prevent the Further Spread of COVID-19,” which took effect on September 4, 2020,
and lasts until December 31, 2020, unless extended. 85 Fed. Reg. 55,292 (Sept. 4, 2020). During
this time period, landlords are prohibited from taking any action to evict qualifying tenants from
their residential rental properties in any state that provides a level of public-health protection below
the requirements listed in the Order. Id. at 55,296. Landlords who violate the Order face stiff
criminal penalties, including fines of up to $100,000, up to a year in jail, or both. For organizational
landlords, fines can go up to $200,000 per event. Id.
To qualify for the moratorium, tenants must execute a “Renter’s or Homeowner’s
Declaration” stating, under penalty of perjury, that: (1) they have used best efforts to obtain
government housing assistance; (2) they make less than $99,000 annually (or $198,000 if filing
jointly); (3) they are unable to pay full rent due to a substantial loss of income, a lay-off, or
extraordinary medical expenses; (4) they have used their best efforts to make partial rent payments;
and (5) if evicted, they are likely to be rendered homeless or have to live in close quarters with
others. Id. at 55,293. See also Complaint ¶¶ 20–36.
Plaintiff Chambless Enterprises, LLC has two non-paying tenants whom it would like to
evict, but cannot because of the CDC Order. Declaration of Joshua Chambless ¶¶ 7–9, 10–12,
(“Chambless Decl.”). Chambless sought to evict a non-paying tenant in September 2020; however,
the West Monroe City Court refused to issue a writ to compel eviction because the tenant submitted
a signed Renter’s Declaration. Chambless Decl. ¶ 8. Chambless cannot initiate action to evict its
other non-paying tenant because the tenant has signed a Renter’s Declaration. Chambless Decl.
¶ 12. Likewise, Plaintiff Apartment Association of Louisiana represents over 376 companies that
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own and rent approximately 118,000 residential units. Declaration of Tammy Esponge ¶ 3. Many
of those members cannot evict because tenants have invoked the CDC Order. Id. ¶¶ 5–6.
ARGUMENT
A plaintiff seeking a preliminary injunction must show that she is likely to succeed on the
merits, that she is likely to suffer irreparable harm if an injunction is not granted, that the balance
of equities tips in her favor, and that an injunction is in the public interest. Winter v. Nat’l Res.
Def. Council, 555 U.S. 7, 24 (2008).
I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS
A.
The order exceeds the CDC’s statutory and regulatory authority
Agency actions “must always be grounded in a valid grant of authority from Congress.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). Here, the CDC Order
exceeds the authority granted by 42 U.S.C. § 264 and 42 C.F.R. § 70.2. These provisions authorize
the CDC to do what anyone might expect a federal disease-prevention-and-control agency to do:
control the interstate spread of disease by conventional means, such as disinfection, fumigation,
and pest extermination. The laws do not, however, authorize an action as extraordinary and
unexpected as a nationwide ban on evictions.
Section 264(a) authorizes the Secretary of HHS1 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 United States or between states. The statute then
elaborates on permissible measures toward that end, stating:
For purposes of carrying out and enforcing such regulations, the [Secretary] may
provide for such inspection, fumigation, disinfection, sanitation, pest
extermination, destruction of animals or articles found to be so infected or
1 The statute actually authorizes the Surgeon General, with the Secretary’s approval, to issue
relevant regulations, but his authority was transferred to the Secretary in 1966. See Reorganization
Plan No. 3 of 1966, 31 Fed. Reg. 8855 (June 25, 1966). See also 20 U.S.C. § 3508.
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4
contaminated as to be sources of dangerous infection to human beings, and other
measures, as in his judgment may be necessary.
42 U.S.C. § 264(a). The regulation, adopted pursuant to section 264(a), largely tracks the statute:
Whenever the Director of the Centers for Disease Control and Prevention
determines that the measures taken by health authorities of any State or possession
(including political subdivisions thereof) are insufficient to prevent the spread of
any of the communicable diseases from such State or possession to any other State
or possession, 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.
42 C.F.R. § 70.2.
The Secretary cannot grant the CDC more authority than Congress granted to him, for an
administrative agency “literally has no power to act . . . unless and until Congress confers power
upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). The relevant statutory
question is therefore whether the language in either the statute or the regulation that allows the
CDC Director or the Secretary to take measures that are “reasonably necessary” in addition to
those listed in the statute and regulation authorizes the CDC to enact a nationwide eviction
moratorium. The answer is “no.” If it were otherwise, the CDC would possess the authority to take
actions that would render the other measures listed in the regulation and statute—inspection,
disinfection, fumigation, and the like—superfluous. It would also mean the CDC possessed the
breathtakingly broad authority to control virtually any action taken by private parties or state and
local governments that could in some way contribute to the spread of disease. As the Supreme
Court has said, Congress does not “hide elephants in mouseholes.” Whitman v. Am. Trucking
Ass’ns, 531 U.S. 457, 468 (2001). A closer look at the statute and regulation confirm that there are
no elephants in sight.
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1.
The text of the statute and regulation confine the CDC’s action to
conventional, specific disease-prevention measures that do not involve
extensive control over human activity
Canons of statutory construction illustrate that the statute and regulation cannot be
interpreted broadly enough to authorize a nationwide eviction moratorium. For example, under
ejusdem generis, a general term following an enumerated list is limited to those things related in
kind to the list: “[W]hen 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. Federal
Bureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk & Western R. Co. v. Train
Dispatchers, 499 U.S. 117, 129 (1991)). The rationale behind the rule is that “Congress remained
focused on the common attribute when it used the catchall phrase.” Id. at 225. The canon applies
with particular force with statutes imposing criminal penalties. United States v. Kaluza, 780 F.3d
647, 661 (5th Cir. 2015). Similarly, under noscitur a sociis, or the associated-words canon, words
in a list are interpreted to have a similar meaning because they are associated in a similar context.
See Yates v. United States, 574 U.S. 528, 544 (2015) (applying both noscitur a sociis and ejusdem
generis in the interpretation of a criminal statute). See also Antonin Scalia & Bryan Garner,
Reading Law: The Interpretation of Legal Texts 199–213, 107–11, 195–98, 93–100, 174–79
(Thompson/West 2012).
The Fifth Circuit has applied these canons to legal provisions that are similar to sections
264(a) and 70.2. For instance, in Kaluza, 780 F.3d 647, the Fifth Circuit employed ejusdem generis
in the Deepwater Horizon litigation to limit the reach of the “seaman’s manslaughter” statute,
which applied to “[e]very captain, engineer, pilot, or other person employed on any steamboat or
vessel.” Id. at 657 (quoting 18 U.S.C. § 1115). The statutory question was whether the phrase
“other person employed on any steamboat or vessel” applied to petroleum engineers charged with
preventing a well blowout. Id. at 656–57. Applying ejusdem generis to address this ambiguous
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phrase, the Court held that “other person,” in light of the list preceding it, only included people
responsible for the “marine operation, maintenance, or navigation of the vessel . . . . in its function
as . . . a means of transportation on water.” Id. at 662.
Similarly, section 264(a) lists permissible agency actions to prevent disease transmission.
That list offers a window into the kinds of action that Congress envisioned: “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 [the agency’s] judgment may be necessary.” 42 U.S.C. § 264(a). The “other
measures,” under ejusdem generis and noscitur a sociis, are limited to the types of action akin to
the list that precedes it: conventional, localized disease-prevention measures directly aimed at
prevention of interstate transmission, which do not involve substantial control over human activity.
See, e.g., Yates, 574 U.S. at 544 (“‘Tangible object’ is the last in a list of terms that begins ‘any
record [or] document.’ The term is therefore appropriately read to refer, not to any tangible object,
but specifically to the subset of tangible objects involving records and documents, i.e., objects used
to record or preserve information.”); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 109, 115
(2001) (“contracts of employment of seamen, railroad employees, or any other class of workers
engaged in foreign or interstate commerce” held to include only transportation workers in foreign
or interstate commerce); McBoyle v. United States, 283 U.S. 25, 27 (1931) (“automobile,
automobile truck, automobile wagon, motor cycle, or any other self-propelled vehicle not designed
for running on rails” held not to apply to an airplane). The same analysis applies to 42 C.F.R.
§ 70.2, whose language closely tracks the statute. These canons thus demonstrate that the CDC has
strayed from its statutory authority for several reasons.
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First, all the measures listed involve conventional disease mitigation measures, such as the
inspection and disinfection of train cars, the fumigation of an airport, or the destruction of
contaminated livestock. The statute authorizes what a reasonable person would expect an
organization like the CDC to do. Indeed, legislative history confirms this by noting that the
legislation was intended to sanction “the use of conventional public-health enforcement methods.”
H.R. Rep. No. 78-1364, at 24–25 (1944) (emphasis added). Nothing in the list even hints at
allowing the CDC to control the contractual relationships of potentially millions of Americans, to
say nothing of legal processes in every municipality in the nation.
If the statute and regulation authorize such sweeping measures as a nationwide eviction
ban, it is hard to understand what these agencies would not be authorized to do. Almost every
human activity—from gatherings, to vacations, to business meetings, to retail, and much more—
carries some risk that people will transmit an infectious disease across state lines. If Congress had
meant to grant such sweeping authority to these agencies, it would have included in the list of
measures something more than conventional methods for eliminating disease. Given the nature of
the measures Congress did choose to include in the statute, courts should not conclude that a broad
grant of authority was hidden in general language such as “other measures,” for that would render
the remainder of the statute meaningless surplusage. See Kungys v. United States, 485 U.S. 759,
778 (1988) (Scalia, J., plurality opinion) (stating that under the non-surplusage canon, “no
provision should be construed to be entirely redundant”). See also Yates, 574 U.S. at 546 (“We
typically use ejusdem generis to ensure that a general word will not render specific words
meaningless.”) (quoting CSX Transp., Inc. v. Alabama Dep’t of Revenue, 562 U.S. 277, 295
(2011)).
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Second, the list contemplates actions limited to specific sites, objects, or animals that are,
or could be, infected with a disease. Inspection, disinfection, fumigation, sanitation, and pest
extermination all occur at particular locations with limited geographic scope. One does not sanitize
a nation. And the list follows a logical progression, beginning with “inspection,” indicating that
some factual basis for believing that disease is actually present is incorporated into the actions that
follow. This is affirmed by the phrase “found to be so infected or contaminated as to be sources of
dangerous infection.” 42 U.S.C. § 264(a). See also 42 C.F.R. § 70.2 (using the phrase “believed to
be the sources of infection”). The targeted and fact-based nature of the items in the list supports
the conclusion that Congress’s intent was to authorize conventional, fact-based disease mitigation
strategies, rather than broad, prophylactic measures that control activities in huge swaths of the
nation. Congress knows how to enact an eviction moratorium, as it did so in the CARES Act.
Coronavirus Aid, Relief, and Economic Security (CARES) Act, Pub. L. No. 116-136, § 4024
(2020). Given the limited nature of the items listed in sections 264(a) and 70.2, it is inconceivable
that Congress intended to hide such sweeping authority in “other measures.”
Third, none of the listed items in section 264(a) or 70.2 contemplate substantial control
over human activity or property. Indeed, the only power to restrict human activity in section 264
is contained in separate subsections and involves apprehension and detention of people who pose
a transmission risk. See 42 U.S.C. § 264(b)–(d). And those sections place careful limits on HHS’s
authority to detain people. For example, the HHS must operate pursuant to an executive order, id.
§ 264(b), and the agency must make specific factual findings as to the particular detainee. Id.
§ 264(d). Nor do these sections contain a catch-all provision that leaves the scope of such authority
to agency discretion. In short, when Congress gave significant control to the HHS over the
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activities of individuals, that authority was limited in scope and the amount of discretion it gave
the agency, and it included significant protections for individual liberty.
Likewise, where Congress gave the HHS the authority to affect an individual’s property in
section 264(a), it limited that authority to circumstances where the facts show a direct threat to
human welfare. Thus, before the agency can undertake the “destruction of animals or articles,” it
must make a finding that the animals or objects are “so infected or contaminated as to be sources
of dangerous infection to human beings.” 42 U.S.C. § 264(a). This finding of high risk to health is
not required for less intrusive actions, such as disinfection. The reason is easy to infer: destruction
of livestock or goods is likely to have a greater impact on property interests than the other
enumerated actions, so such action can only be taken if there is a clearer health risk.
The CDC Order makes no such finding. Instead, the CDC speculates that evictions could
lead to homelessness, which could lead to increased risk of transmission, which might result in
someone (someday) crossing a border who might pose a serious risk of infection. See 85 Fed. Reg.
at 55,296 (speculating on “potentially” increased transmission if evictions “potentially” increase
in number). The CDC’s sweeping assault on landlords’ property interests, based only on
conjecture, clashes with the statute’s demanding standards of individualized evidence when
imposing burdens on property and liberty interests.
Fourth, the statute and regulation authorize actions directly connected to “prevent[ing] the
introduction, transmission, or spread of communicable diseases” from foreign countries or
between states. See 42 U.S.C. § 264(a); 42 C.F.R. § 70.2. The authority granted to the agency does
not include regulation of intrastate activity, such as eviction proceedings, that bear only a tenuous
and speculative connection to interstate transmission of disease. Indeed, the regulation is even
more specific in this regard than the statute, as it requires the CDC Director to act only when he
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finds that “measures taken by health authorities in any State or possession . . . are insufficient to
prevent the spread of” a communicable disease from state to state.2 42 C.F.R. § 70.2. The CDC
has made no findings about the insufficiency of any particular state health measures. Instead, the
Order simply declares that any state eviction moratorium with lesser protections than the CDC
moratorium is insufficient to prevent the spread of COVID-19. See 85 Fed. Reg. at 55,294.
If the CDC can regulate wholly intrastate activity like an eviction proceeding on the
speculation that it might prompt an individual to move out of state, then any human activity,
however attenuated, would fall within the CDC’s regulatory crosshairs. This would, in turn, render
both the statute’s and the regulation’s focus on cross-border transmission pointless surplusage. See
United States v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be meaningless, else they
would not have been used.”).
The CDC’s action—banning evictions nationwide—is not related in kind to the list of
actions permitted under the statute or regulation. It does not fit within a conventional understanding
of typical disease control measures. It is a sweeping, nationwide action, not limited to specific hot
spots. It is not an action aimed directly at the prevention of disease—rather, it deals with matters
that are several causal steps removed from the spread of disease. And, unlike the traditional disease
mitigation measures listed, the CDC order is a breathtaking exercise of control over human
activity. Given how far removed the CDC’s action is from the list of activities contemplated by
Congress, the CDC Order cannot be authorized by the statute.
2 The statute’s savings clause affirms this narrower reading of the CDC’s authority by creating a
presumption that the statute should not be interpreted to conflict with state law. See 42 U.S.C.
§ 264(e) (stating that nothing in the section or its implementing regulations “may be construed as
superseding any provision under State law . . . except to the extent that such a provision conflicts
with an exercise of Federal authority under this section”). As noted, nothing on the face of the
statute creates a conflict between the CDC’s authority and state eviction proceedings. It is only the
CDC’s interpretation of its authority that creates such a conflict.
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A federal district court in the Northern District of Georgia recently adopted CDC’s
remarkably broad reading of its authority in the court’s denial of a motion for preliminary
injunction in a similar challenge to the CDC Order. See Brown v. Azar, No. 1:20-CV-03702-JPB,
2020 WL 6364310 (Oct. 29, 2020). The district court declined to apply canons of construction like
ejusdem generis because “there is no ambiguity to which they could be applied,” because Congress
had demonstrated an “unambiguous intent to delegate broad authority to the CDC to enter an order
such as the one at issue here.” Id. at *9.
The district court erred in concluding that it had to find ambiguity before it could employ
the ejusdem generis canon. See Yates, 574 U.S. at 537 (applying ejusdem generis before
determining whether the text was ambiguous); Circuit City Stores, 532 U.S. at 114–20 (same).
This conclusion also runs contrary to numerous other canons of statutory construction. For
example, if it is true that “other measures” unambiguously allow the CDC to simply do whatever
it thinks best to mitigate transmission, then the enumerated list preceding “other measures” is mere
surplusage, an outcome that courts are obligated to avoid. See Kungys, 485 U.S. at 778 (“[N]o
provision should be construed to be entirely redundant.”); Kaluza, 780 F.3d at 659 (rejecting a
broad reading of “other person” because it would render “captain, “engineer,” and “pilot”
superfluous). The court, moreover, ignored important interpretive presumptions that disfavor the
reading proposed by CDC, which are discussed at length below. See Brown, 2020 WL 6364310 at
*9–10.
2.
Interpretive presumptions regarding congressional intent favor a narrow
reading of the statute
Courts employ a variety of canons of construction to avoid imputing to Congress intentions
that may clash with important policy or legal standards unless Congress has spoken with a high
degree of clarity. These include the federalism canon, the constitutional-avoidance canon, and the
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rule of lenity. Here, all three canons favor a reading of the statute that would not authorize the
sweeping power wielded by the CDC.
a.
Congress did not clearly state that it intended to alter the
state-federal balance
“[I]f Congress intends to alter the usual balance between the States and the Federal
Government, it must make its intention to do so unmistakably clear in the language of the statute.”
Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (cleaned up). Where a court faces multiple
“plausible interpretations” of a statute, “the proper course [is] to adopt a construction which
maintains the existing balance” between federal and state power “absent a clear indication of
Congress’ intent to change the balance.” Salinas v. United States, 522 U.S. 52, 59 (1997).
In 42 U.S.C. § 264, Congress has said nothing about evictions, much less that HHS or the
CDC may meddle in state property and contract law, longstanding areas of state primacy. See
Robert Van Someren Greve, Protecting Tenants Without Preemption, 25 Geo. J. on Poverty L. &
Pol’y 135, 157 (2017) (“[H]ousing is an area of law traditionally left to the states.”). In addition to
lacking a clear intent to override state prerogatives in contract and property law, the savings clause
of section 264(e) confirms the opposite intent. See supra note 2.
b.
The CDC’s broad interpretation of its authority would
create severe constitutional concerns
Courts must prefer a reasonable reading of a statute that avoids serious constitutional
concerns. This “cardinal principle” applies “if a serious doubt of constitutionality is raised,”
requiring the court to “ascertain whether a construction of the statute is fairly possible by which
the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932). See Solid Waste Agency
of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (explaining that when
an agency interpretation of a statute raises serious constitutional questions, the Supreme Court
expects to find a “clear statement from Congress” supporting the interpretation). This canon was
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recently employed to narrow the neighboring statutory provision in 42 U.S.C. § 265, rejecting a
“breathtakingly broad” interpretation of the CDC’s authority over non-citizens because the
interpretation “would raise serious constitutional issues.” P.J.E.S. v. Wolf, No. 1:20-cv-2245
(EGS/GMH), 2020 WL 5793305, at *14 (D.D.C. Sept. 25, 2020).
Here, as discussed above, any reading of the statute that would authorize a nationwide ban
on evictions would place no meaningful limits or guidance on what “other measures” the CDC
might deem necessary to prevent transmission of disease state-to-state. This interpretation would
raise serious constitutional concerns under the non-delegation doctrine, the Commerce Clause, and
the Tenth Amendment.
The non-delegation issue is discussed at length in subsection B, below, but it merits a
summary here. A non-delegation concern arises because a broad reading of the statute leaves it
without any intelligible principle to guide the agency’s discretion. If the statute allows the CDC
eviction moratorium, then it effectively would allow any action that the agency may consider to
be necessary in its “judgment” to prevent transmission of communicable disease. Since disease
transmission is an ever-present risk, the CDC’s interpretation offers no guidance to the exercise of
agency authority—effectively delegating the legislative power reserved to Congress under Article
I of the Constitution to the HHS and the CDC. The Court should opt for a narrower reading of the
statute to evade the serious constitutional question raised by the CDC’s interpretation.
For similar reasons, the CDC’s interpretation raises Commerce Clause concerns. While
Congress can regulate economic activity that substantially affects interstate commerce, the
Supreme Court has repeatedly held that the Commerce Clause does not create a federal police
power. See United States v. Lopez, 514 U.S. 549, 567 (1995). Yet section 264(a), if read broadly
enough to allow the CDC to impose an eviction moratorium, would effectively allow the CDC to
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adopt any of the measures that state governors and legislatures have adopted to fight the
pandemic—from eviction bans, to business closures, to limits on church and social gatherings. In
short, the statute as interpreted by the CDC would create a federal police power, allowing a federal
agency to control activity on a nationwide basis, however distant its impact on interstate
commerce.
Such a federal police power would likewise run afoul of the Tenth Amendment, which
provides that “powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The
states thus “retain a significant measure of authority to the extent that the Constitution has not
divested them of their original powers and transferred those powers to the Federal Government.”
New York v. United States, 505 U.S. 144, 156 (1992) (cleaned up). The police power is the most
fundamental reservation of all, intended to allow for more accountable and localized exercise of
authority to watch after the common welfare: “Because the police power is controlled by fifty
different states instead of one national sovereign, the facets of governing that touch on citizens’
daily lives are normally administered by smaller governments closer to the governed.” NFIB v.
Sebelius, 567 U.S. 519, 536 (2012). The statute should not be read to grant the CDC a roving
authority to override the localized model of governance built into our constitutional structure.
Finally, the First Amendment’s Petition Clause provides that “Congress shall make no law
. . . abridging . . . the right of the people . . . to petition the Government for a redress of grievances.”
U.S. Const. amend. I. The Supreme Court has explained that “‘[t]he right of access to courts for
redress of wrongs is an aspect of the First Amendment right to petition the government.’” Borough
of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011) (quoting Sure-Tan, Inc. v. NLRB, 467 U.S.
883, 896–97 (1984)). See also BE & K Constr. Co. v. NLRB, 536 U.S. 516, 525 (2002) (providing
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a short history of the Court’s jurisprudence concerning the right to access the courts); California
Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510 (1972) (explaining that “[t]he right
of access to the courts is indeed but one aspect of the right of petition”). The CDC’s interpretation
of sections 264(a) and 70.2 halts landlords that have legally cognizable claims under state law from
bringing those claims to their own state courts. Clearly, the CDC’s interpretation implicates those
landlords’ right to access the courts.
This Court need not even decide the merits of these constitutional questions to apply the
constitutional avoidance doctrine. It suffices that the doubts raised as to the constitutionality of a
particular interpretation are “substantial.” Scalia & Garner, supra § 38 (quoting William K. Kelley,
Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831, 871
(2001)). The constitutional concerns with a broad reading of the statute are more than substantial.
c.
The CDC’s broad interpretation of its authority would
violate the rule of lenity
The rule of lenity is a “venerable rule” designed to protect citizens from being “held
accountable for a violation of a statute whose commands are uncertain or subjected to punishment
that is not clearly prescribed.” United States v. Santos, 553 U.S. 507, 514 (2008). The rule therefore
requires that “ambiguity concerning the ambit of criminal statutes should be resolved in favor of
lenity.” Yates, 574 U.S. at 528, 544 (quoting Rewis v. United States, 401 U.S. 808, 812 (1971)).
The CDC’s interpretation of sections 264(a) and 70.2 trigger lenity because that
interpretation creates an ambiguity in the statute that HHS or the CDC are then entitled to fill with
whatever measures these agencies believe might prevent the spread of disease. As noted, above,
this would not just be limited to an eviction moratorium, but would cover virtually anything that
might help prevent the spread of COVID-19 or any other disease. Those in the position of Plaintiffs
would face criminal liability based on nothing more than the ad hoc interpretation of these
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provisions by the CDC or the HHS. The rule of lenity does not permit such a flexible and wide-
ranging interpretation of criminal laws. As the Supreme Court has stated, “criminal laws are for
courts, not for the Government, to construe.” Abramski v. United States, 573 U.S. 169, 191 (2014).
B.
If the statute can be read broadly enough to authorize an eviction moratorium,
then it violates the non-delegation doctrine
Article I of the United States Constitution vests “[a]ll legislative power” in Congress. U.S.
Const. art. I, § 1. This assignment implies a “bar on [the legislative power’s] further delegation.”
Gundy v. United States, 139 S. Ct. 2116, 2123 (2019). Statutes that grant too much discretion to
agencies tasked with enforcing them effectively hand the task of lawmaking to the agency. Hence,
statutes must contain “an intelligible principle to guide the delegee’s use of discretion.” Id.
Congress can authorize executive officers and agencies to determine facts and can delegate
“the duty to carry out the declared legislative policy.” Panama Refining Co. v. Ryan, 293 U.S. 388,
426 (1935). Congress cannot, however, “[leave] the matter to the [executive] without standard or
rule, to be dealt with as he please[s].” Id. at 418. For instance, in Panama Refining, the Supreme
Court struck down a statute granting the President authority to outlaw the transportation of excess
oil without providing “definition of circumstances and conditions in which the transportation is to
be allowed or prohibited.” Id. at 430. Similarly, in A.L.A Schechter Poultry Corp. v. United States,
295 U.S. 495, 537–38 (1935), the Court struck down a statute enabling the President to approve
codes of fair competition, leaving him free to “exercise an unfettered discretion to make whatever
laws he thinks may be needed or advisable.”
As noted above, neither section 264(a) nor 70.2 can be read broadly enough to allow the
CDC to impose a nationwide eviction moratorium. But if they can be, then they grant even broader
authority than the statutes in Panama Refining and Schechter. Almost any activity that causes
people to come into close proximity to each other can contribute to the introduction, transmission,
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or spread of communicable disease, which, in turn, can then travel easily across borders. If the
CDC’s interpretation is correct, then it has the ability to regulate, control, or outlaw any such
activity, which is to say that the CDC possesses the limitless discretion to make law concerning
any of the wide range of activities that could conceivably lead to the transmission of disease in the
United States. If the CDC is right, the roving power to control spread of disease is left entirely to
the agency’s “judgment.” 42 U.S.C. § 264(a).
The fathomless scope of the statute under the CDC’s interpretation is exacerbated by the
statute’s failure to define “communicable disease.” See 24 U.S.C. § 264. Communicable diseases,
from the common cold to conjunctivitis, are always with us. Yet the statute does not limit itself to
uncommon or particularly virulent or dangerous diseases. As a result, any activity that may end up
passing the sniffles from one person to another would appear to fit within the agency’s discretion
to regulate.
Further, the statute does not limit the agency’s authority to times of emergency, such as an
outbreak or epidemic. Rather, the agency has authority to limit spread where no clear danger of a
serious epidemic exists. Since the risk of disease transmission never sleeps, the statute appears to
give the agency extraordinary authority to wield however it wants, whenever it wants. The result
is an ever-ready font of power that the CDC may draw from at will.
This reading of the statute goes far beyond determining facts or carrying out an articulated
legislative policy. The statute does not, for instance, give the agency instructions on what to do
should a certain set of circumstances arise, leaving the agency to decide when those circumstances
eventuate. Rather, it fails to limit the factual conditions under which the authority can be exercised,
since transmission of communicable disease is an ever-present risk, and it offers no guidance on
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the nature of actions that can be taken when factual conditions are met, leaving that to the agency’s
“judgment.” Id.
Consequently, the statute, under the CDC’s reading, delegates “an unfettered discretion to
make whatever laws [the agency] thinks may be needed or advisable.” Schechter, 295 U.S. at 537–
38. The statute would allow the agency to shut down widespread and commonplace activity at any
time, given that communicable disease is always lurking, however small the risk or minor the
disease. The statute’s lack of specific standards by which to guide the agency is all the more
troubling given the extraordinary scope of power the CDC’s interpretation assumes and the
criminal sanctions the eviction moratorium imposes. See Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 475 (2001) (stating that “the degree of agency discretion that is acceptable varies
according to the scope of the power . . . conferred”); Synar v. United States, 626 F. Supp. 1374,
1386 (D.D.C. 1986) (stating that where the scope of power “increases to immense proportions (as
in Schechter) the standards must be correspondingly more precise”); United States v. Robel, 389
U.S. 258, 275 (1967) (Brennan, J., concurring in the result) (stating that courts should exercise less
tolerance for nebulous grants of power “when the regulation invokes criminal sanctions and
potentially affects fundamental rights”); Midwest Institute of Health v. Governor of Michigan, No.
161492, slip op. at 29 (Mich. S. Ct. Oct. 2, 2020) (striking down legislative delegation of
emergency powers to a governor in part of because of the breadth of the power delegated, which
granted “power to reorder social life and to limit, if not altogether displace, the livelihoods of
residents across the state and throughout wide-ranging industries”).
C.
The CDC’s Eviction Moratorium Violates the Administrative Procedure Act
First, the Administrative Procedure Act (APA) requires federal agencies to provide a notice
and comment period for all legislative rules. See Texas v. United States, 809 F.3d 134, 171 (5th
Cir. 2015) (substantive rules must “scrupulously” go through notice and comment). The Order is
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unquestionably a “rule” subject to the APA’s notice and comment requirements because it has the
force of law—affecting the rights and legal relations of millions of landlords and tenants
nationwide. See Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015); Azar v. Allina Health
Servs., 139 S. Ct. 1804, 1812 (2019). There can be no excuse for CDC failing to provide notice
and comment given that CDC has known about the pandemic since January, 2020.3 See
Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)
(stressing notice-and-comment exemptions are narrowly construed).
Second, CDC’s decision to issue the Order was arbitrary and capricious. 5 U.S.C. § 706.
For one, there is no substantial evidence that local authorities have failed to take necessary actions
or that there would be a wave of evictions in the absence of a national moratorium. There is also
no way that a four-month moratorium would do anything to substantially advance CDC’s cited
public concern. See Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962). And
finally, CDC failed to consider the possibility that its Order might make it more difficult for low
income tenants to secure housing during the pandemic.4 See Motor Vehicle Mfrs. Ass’n of U.S.,
Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983).
II.
WITHOUT AN INJUNCTION, PLAINTIFFS WILL SUFFER
IRREPARABLE HARM
The CDC eviction moratorium causes Plaintiffs irreparable harm for three independent
reasons.
First, the eviction moratorium violates the Constitution. Where constitutional claims are
alleged, courts “presume irreparable harm.” Winter., 555 U.S. at 22. See also Ridgley v. Federal
3 The first COVID-19 case on American soil was confirmed on January 21, 2020. Erin Schumaker,
Timeline: How Coronavirus Got Started, ABC News, https://abcnews.go.com/Health/timeline-
coronavirus-started/story?id=69435165.
4 See Esponge Declaration ¶¶ 9–10.
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Emergency Management Agency, 512 F.3d 727, 735 (5th Cir. 2008); Deerfield Med. Ctr. v. City
of Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981). Here, the CDC eviction moratorium violates
the separation of powers because it amounts to the CDC making law. As the Supreme Court has
made clear, the separation of powers “serves not only to make Government accountable but also
to secure individual liberty.” Boumediene v. Bush, 553 U.S. 723, 742 (2008). See also Bond v.
United States, 564 U.S. 211, 222 (2011) (recognizing “an injured person’s standing to object to a
violation of a constitutional principle that allocates power within government” where “individuals
sustain discrete, justiciable injury from actions that transgress separation-of-powers limitations”);
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 561 U.S. 477, 513 (2010)
(recognizing parties’ right to ensure that laws will be enforced only by “a constitutional agency
accountable to the Executive” under Article II); Clinton v. City of New York, 524 U.S. 417, 450
(1998) (Kennedy, J., concurring) (“Liberty is always at stake when one or more of the branches
seek to transgress the separation of powers.”). The CDC eviction moratorium also interferes with
the relationship between the federal government and the states by imposing criminal liability on
Plaintiffs’ use of an entirely legal method of addressing violations of their lease agreements and
property rights. Louisiana law specifically protects the right to access the courts in order to evict
tenants and protect property rights. See La. Civ. Code Ann. art. 4701. Yet the eviction moratorium
effectively closes the courthouse door on Plaintiffs, thus preventing them from redressing the
violation of their property and contract rights. See Christopher v. Harbury, 536 U.S. 403, 413–15
(2002) (holding that a person is denied their right of access to courts where (1) they have a sound
underlying cause of action; and (2) an official action has frustrated that litigation). Federalism, just
as the separation of powers, protects liberty. See Bond, 564 U.S. at 222.
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Second, Plaintiffs face irreparable injury because they cannot regain possession of their
property. Loss of property interest has often been proof of irreparable harm. See, e.g., Ridgley, 512
F.3d at 735 (finding that plaintiffs did not have a property interest in that case, but accepting the
premise that if such an interest existed it would justify finding irreparable harm); see also Girl
Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1090 (7th Cir.
2008) (holding that “[a]s a general rule, interference with the enjoyment or possession of land is
considered ‘irreparable’ since land is viewed as a unique commodity”); Minard Run Oil Co. v.
U.S. Forest Service, 670 F.3d 236, 256 (3d Cir. 2011) (“[W]here ‘interests involving real property
are at stake, preliminary injunctive relief can be particularly appropriate because of the unique
nature of the property interest.’”) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203, 1210 (10th
Cir. 2009)); Carpenter Tech. Corp. v. City of Bridgeport, 180 F.3d 93, 97 (2d Cir. 1999) (holding
that where loss of real property was at issue, irreparable harm existed); K-Mart Corp. v. Oriental
Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (finding that damage to real estate, because of its
inherent uniqueness, constituted irreparable harm). The Order affects Plaintiffs’ property rights by
abrogating their right to exclude, a fundamental aspect of property rights. See Kaiser Aetna v.
United States, 444 U.S. 164, 179–80 (1979) (recognizing the right to exclude as “universally held
to be a fundamental element of the property right”). Accordingly, disallowing possession of one’s
property constitutes irreparable injury. See East Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808,
828–29 (4th Cir. 2004) (gas company’s inability to immediately possess condemned property was
irreparable harm).
Third, harm is irreparable when the defendant is likely to be insolvent at the time of
judgement. See Productos Carnic, S.A. v. Central American Beef and Seafood Trading Co., 621
F.2d 683, 687 (5th Cir. 1980) (holding that there is irreparable harm where failure to issue an
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injunction would likely prevent the court from ever providing an effective remedy). See also
Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994)
(finding irreparable harm where defendant may become insolvent before a final judgment can be
entered and collected); Basicomputer Corp. v. Scott, 791 F. Supp. 1280, 1292 (N.D. Ohio 1991),
aff’d, 973 F.2d 507 (6th Cir. 1992) (same). Tenants who have executed Renter’s Declarations and
invoked the CDC eviction moratorium are necessarily insolvent, as they have sworn in their
declarations that they cannot make their full rental payments due to the loss of employment or
extraordinary expenses. Thus, by definition, Plaintiffs will be unable to collect the back payments.
Cf., Heil Trailer Intern. Co. v. Kula, 542 Fed. Appx. 329 (5th Cir. 2013) (finding money damages
insufficient where damages were difficult to calculate); Lakedreams v. Taylor, 932 F.2d 1103,
1109 (5th Cir. 1991) (same); Allied Mktg. Grp., Inc. v. CDL Mktg., Inc., 878 F.2d 806, 810 n.1
(5th Cir. 1989) (same).
III.
THE PUBLIC INTEREST AND BALANCE OF EQUITIES WEIGH IN
PLAINTIFFS’ FAVOR
It is well settled that the public interest always supports enforcing the Constitution. See
Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 470 n. 9 (5th Cir. 2014) (citing with
approval Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012). See also Deja Vu of Nashville,
Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400 (6th Cir. 2001) (“[I]t
is always in the public interest to prevent violation of a party’s constitutional rights.”) (quoting G
& V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 (6th Cir. 1994)); Gordon
v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013) (“[I]t may be assumed that the Constitution is the
ultimate expression of the public interest.”) (citation omitted); Opulent Life Church v. City of Holly
Springs, Miss., 697 F.3d 279, 298 (5th Cir. 2012) (preliminary injunction issued to protect First
Amendment rights). The same basic principle applies to the balance of equities. See Planned
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Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987)
(concluding that, where there is a likelihood of success on the merits in a case involving a
constitutional question, the balance of equities favors an injunction because it is “questionable
whether [there can be] any ‘valid’ interest in enforcing” an unconstitutional rule); Adams & Boyle,
P.C. v. Slatery, 956 F.3d 913, 928 (6th Cir. 2020) (finding that speculative claims about COVID-
19 risks cannot outweigh concrete harms to constitutional liberties). Because this case involves
serious questions concerning the CDC’s statutory and constitutional authority and Plaintiffs have
demonstrated a likelihood of success on the merits, the public interest and the equities weigh in
favor of enjoining the eviction moratorium.
The government will no doubt argue that preventing the spread of disease is within the
public interest and therefore the balance of equities weighs in its favor. While it is true that
preventing disease serves the public interest, it does not follow that foisting the costs of preventing
the spread of disease on a small minority of the public is either equitable or within the public
interest. Indeed, forcing landlords to bear the costs of preventing a public health problem is the
very definition of inequitable. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960) (The Fifth
Amendment’s Takings Clause “was designed to bar Government from forcing some people alone
to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.”). Likewise, it is neither equitable nor in the public interest to cut off Plaintiffs’ access to
a legal process for enforcing their rights under state law. Cf. Pike v. Bruce Church, Inc., 397 U.S.
137, 142 (1970) (affirming that state statutes generally serve legitimate public interests which
federal law must generally respect); Harbury, 536 U.S. at 414–15 (affirming the right of access to
courts for legitimate legal claims). Indeed, a large part of the reason eviction proceedings exist is
to prevent “self-help” and to ensure that individuals can regain possession of their land through a
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24
civil process governed by law. See Richard v. Broussard, 495 So.2d 1291, n. 1 (La. 1986) (“A
lessor generally must resort to the judicial process to take possession of the leased premises upon
the lessee’s default and may not engage in self-help.”). By denying all landlords the right to utilize
this process, the CDC has not only abrogated state law, it has acted contrary to the State of
Louisiana’s view of what is, in fact, in the public’s interest.5
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be granted.
DATED: November 12, 2020.
Respectfully submitted:
s/ JAMES C. RATHER, JR.
JAMES C. RATHER, JR.
Louisiana Bar No. 25839
ALKER & RATHER, LLC
4030 Lonesome Rd., Suite B
Mandeville, LA 70448
Tel: (985) 727-7501
JRather@alker-rather.com
STEVEN M. SIMPSON*
DC Bar No. 462553
Pacific Legal Foundation
3100 Clarendon Blvd., Suite 610
Arlington, VA 22201
Tel: (202) 888-6881
SSimpson@pacificlegal.org
LUKE A. WAKE*
DC Bar No. 1009181
ETHAN W. BLEVINS*
Washington State Bar No. 48219
HANNAH SELLS MARCLEY*
Washington State Bar No. 52692
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
Tel: (916) 419-7111
LWake@pacificlegal.org
EBlevins@pacifclegal.org
HMarcley@pacificlegal.org
*Pro hac vice applications pending
Attorneys for Plaintiffs
5 This Court should also waive any bond requirement, under Rule 65 because there is no realistic
likelihood of harm to the defendant if an injunction is granted. See Gordon v. City of Houston,
Tex., 79 F. Supp. 3d 676, 695 (S.D. Tex. 2015), judgment entered, No. CIV. 14-03146, 2015 WL
1119980 (S.D. Tex. Feb. 2, 2015) (granting waiver of Rule 65’s bond requirement where there
was “no risk of monetary loss to the defendants” in issuing a preliminary injunction).
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CERTIFICATE OF SERVICE
I certify that on this 12th day of November, 2020, I served copies of the foregoing on all
Defendants in this action pursuant to Federal Rule of Civil Procedure 5(b)(2)(C) by delivering
copies to the U.S. Postal service to be sent by certified mail to their last known address.
By /s/ JAMES C. RATHER, JR
.
JAMES C. RATHER, JR.
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