Defendants' Opposition to Motion for Preliminary Injunction — Chambless v. Redfield

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Defendants' Memorandum in Opposition to Plaintiffs' Motion for Preliminary Injunction, dated December 7, 2020, in Chambless Enterprises LLC v. Centers for Disease Control and Prevention, Case No. 3:20-cv-1455, in the U.S. District Court for the Western District of Louisiana, before Judge Terry A. Doughty. The memorandum opposes a motion to invalidate the CDC order temporarily halting residential evictions, published at 85 Fed. Reg. 55292 (Sept. 4, 2020). It argues the plaintiffs, a residential landlord and an association of residential landlords, have not shown irreparable injury because their alleged economic losses are compensable. It argues CDC acted within its authority under the Public Health Service Act, 42 U.S.C. § 264, and that section 361(a) is a valid delegation containing an intelligible principle. It adds that any relief granted should be narrowly tailored.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA 
MONROE DIVISION 
 
CHAMBLESS ENTERPRISES LLC, et al., 
 
      Plaintiffs, 
 
v. 
 
CENTERS FOR DISEASE CONTROL AND 
PREVENTION, et al., 
 
      Defendants. 
 
 
 
 
 Case No. 3:20-cv-1455 
 
Judge Terry A. Doughty 
 
Magistrate Judge Karen L. Hayes 
 
 
 
DEFENDANTS’ MEMORANDUM IN OPPOSITION TO  
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION

i 
 
TABLE OF CONTENTS 
 
INTRODUCTION ........................................................................................................................................... 1 
BACKGROUND .............................................................................................................................................. 2 
I. 
Statutory and Regulatory Background ................................................................................................ 2 
II. The COVID-19 Pandemic ................................................................................................................... 4 
III. The CDC Order .................................................................................................................................... 5 
IV. Plaintiffs’ Claims .................................................................................................................................... 8 
ARGUMENT ..................................................................................................................................................... 9 
I. 
Plaintiffs Are Not Entitled to Extraordinary Injunctive Relief. ..................................................... 9 
A. 
Plaintiffs Have Not Shown Irreparable Injury. ......................................................................... 9 
1. 
The Mere Assertion of Constitutional Theories Does Not Establish Irreparable    
Injury. ......................................................................................................................................... 10 
2. 
The Order Does Not Interfere With Plaintiffs’ Possession Of Their Property. ............ 11 
3. 
Plaintiffs’ Alleged Economic Losses Are Compensable. ................................................... 12 
B. 
Plaintiffs Have Not Shown A Likelihood of Success on the Merits. .................................. 14 
1. 
CDC Acted within Its Statutory and Regulatory Authority. .............................................. 14 
a. The Order falls within CDC’s broad authority under the PHSA .................................. 15 
b. Canons of construction do not negate Congress’s clear intent. .................................... 18 
c. The interpretive presumptions to which Plaintiffs point do not apply. ....................... 24 
2. 
Section 361(a) Contains an Intelligible Principle and Is Thus a Valid Delegation. ........ 26 
3. 
The Order Does Not Violate the APA’s Notice-and-Comment Requirements. ........... 29 
4. 
The Order Is Not Arbitrary or Capricious. .......................................................................... 30 
C. 
The Injunction Plaintiffs Seek Is Contrary to the Public Interest. ....................................... 32 
II. Any Relief Granted Should Be Narrowly Tailored. ....................................................................... 34 
CONCLUSION ............................................................................................................................................... 35 

ii 
 
TABLE OF AUTHORITIES 
Cases 
Abramski v. United States, 
573 U.S. 169 (2014) ..................................................................................................................................... 26 
Air Transport Ass’n of Am. v. FAA, 
169 F.3d 1 (D.C. Cir. 1999) ........................................................................................................... 30, 31, 32 
Ali v. Fed. Bureau of Prisons, 
552 U.S. 214 (2008) ................................................................................................................. 18, 19, 20, 21 
Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 
875 F.2d 1174 (5th Cir. 1989) .................................................................................................................... 12 
Auracle Homes, LLC v. Lamont, 
No. 20-00829, 2020 WL 4558682 (D. Conn. Aug. 7, 2020) .......................................................... 22, 33 
Babbitt v. Sweet Home Ch. of Cmtys. for a Great Or., 
515 U.S. 687 (1995) ........................................................................................................................ 18, 21, 22 
Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 
462 U.S. 87 (1983) ....................................................................................................................................... 31 
Basicomputer Corp. v. Scott, 
791 F. Supp. 1280 (N.D. Ohio 1991) ....................................................................................................... 13 
Big Time Vapes, Inc. v. FDA, 
963 F.3d 436 (5th Cir. 2020) ............................................................................................................... 27, 28 
Bouchard Transp. Co. v. Dep’t of Homeland Sec., 
No. 20-1116, 2020 WL 1689869 (E.D. La. Apr. 7, 2020) ..................................................................... 11 
Brown v. Azar, 
No. 20-3702, 2020 WL 6364310 (N.D. Ga. Oct. 29, 2020) ............................................................ passim 
Camp v. Pitts, 
411 U.S. 138 (1973) ..................................................................................................................................... 32 
Carpenter Tech. Corp. v. City of Bridgeport, 
180 F.3d 93 (2d Cir. 1999) ......................................................................................................................... 11 
Chickasaw Nation v. United States, 
534 U.S. 84 (2001) ....................................................................................................................................... 19 
City of Arlington v. FCC, 
569 U.S. 290 (2013) ..................................................................................................................................... 15 

iii 
 
Clark v. Martinez, 
543 U.S. 371 (2005) ..................................................................................................................................... 25 
Council of S. Mountains, Inc. v. Donovan, 
653 F.2d 573 (D.C. Cir. 1981) ................................................................................................................... 29 
Deerfield Med. Ctr. v. Deerfield Beach, 
661 F.2d 328 (5th Cir. 1981) ...................................................................................................................... 10 
Dennis Melancon, Inc. v. City of New Orleans, 
703 F.3d 262 (5th Cir. 2020) ...................................................................................................................... 13 
Elmsford Apt. Assocs., LLC v. Cuomo, 
No. 20-4062, 2020 WL 3498456 (S.D.N.Y. June 29, 2020) ........................................................... 12, 13 
FCC v. Fox Television Stations, 
556 U.S. 502 (2009) ..................................................................................................................................... 31 
Gill v. Whitford, 
138 S. Ct. 1916 (2018) ................................................................................................................................. 34 
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 
549 F.3d 1079 (7th Cir. 2008) .................................................................................................................... 11 
Gonzales v. Raich, 
545 U.S. 1 (2005) ......................................................................................................................................... 26 
Gonzalez v. Oregon, 
546 U.S. 243 (2006) ..................................................................................................................................... 15 
Graham Cty. Soil & Water Conservation Dist. v. United States ex rel. Wilson, 
559 U.S. 280 (2010) ..................................................................................................................................... 19 
Gregory v. Ashcroft, 
501 U.S. 452 (1991) ..................................................................................................................................... 25 
Gundy v. United States, 
139 S. Ct. 2116 (2019) ................................................................................................................................. 27 
Holland v. Nat’l Mining Ass’n, 
309 F.3d 808 (D.C. Cir. 2002) ................................................................................................................... 35 
Hughes Network Sys., Inc. v. InterDigital Commc’ns Corp., 
17 F.3d 691 (4th Cir. 1994) ........................................................................................................................ 13 
Humana, Inc. v. Jacobson, 
804 F.2d 1390 (5th Cir. 1986) .................................................................................................................... 10 
 

iv 
 
Hunt v. Wash. State Apple Advertising Comm’n, 
432 U.S. 333 (1977) ..................................................................................................................................... 35 
Indep. Turtle Farmers of La. v. United States, 
703 F. Supp. 2d 604 (W.D. La. 2010) ................................................................................... 15, 16, 18, 23 
Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 
448 U.S. 607 (1980) ..................................................................................................................................... 27 
Jarecki v. G.D. Searle & Co., 
367 U.S. 303 (1961) ..................................................................................................................................... 18 
Jifry v. FAA, 
370 F.3d 1174 (D.C. Cir. 2004) ................................................................................................................. 29 
Jordan v. Fisher, 
823 F.3d 805 (5th Cir. 2016) ........................................................................................................................ 9 
KC Tenants v. Byrn, 
No. 20-784, 2020 WL 7063361 (W.D. Mo. Nov. 30, 2020).................................................................... 8 
K-Mart Corp. v. Oriental Plaza, Inc., 
875 F.2d 907 (1st Cir. 1989) ....................................................................................................................... 11 
Lake Charles Diesel, Inc., v. Gen. Motors Corp., 
328 F.3d 192 (5th Cir. 2003) ........................................................................................................................ 9 
Lambert v. Bd. of Comm’rs of Orleans Levee Dist., 
No. CV 05-5931, 2006 WL 8456316 (E.D. La. Mar. 22, 2006) ............................................................ 11 
Lamie v. U.S. Trustee, 
540 U.S. 526 (2004) ..................................................................................................................................... 21 
League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 
814 F. App’x 125 (6th Cir. 2020) ....................................................................................................... 22, 33 
Louisiana v. Mathews, 
427 F. Supp. 174 (E.D. La. 1977) ...................................................................................................... 15, 23 
Madsen v. Women’s Health Ctr., Inc., 
512 U.S. 753 (1994) ..................................................................................................................................... 34 
Marshall v. United States, 
414 U.S. 417 (1974) ..................................................................................................................................... 15 
Martinez v. Mathews, 
544 F.2d 1233 (5th Cir. 1976) ...................................................................................................................... 9 
 

v 
 
Minard Run Oil Co. v. U.S. Forest Serv., 
670 F.3d 236 (3d Cir. 2011) ....................................................................................................................... 11 
Mistretta v. United States, 
488 U.S. 361 (1989) ........................................................................................................................ 25, 27, 28 
Mobil Oil Corp. v. Dep’t of Energy, 
610 F.2d 796 (Temp. Emer. Ct. App. 1979) ............................................................................................ 30 
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29 (1983) ....................................................................................................................................... 31 
Mount Clemens Inv. Grp., LLC v. Borman’s Inc., 
No. 10-12679, 2010 WL 3998095 (E.D. Mich. Oct. 12, 2010) ............................................................. 12 
Muscarello v. United States, 
524 U.S. 125 (1998) ..................................................................................................................................... 26 
N.Y. Cent. Secs. Corp. v. United States, 
287 U.S. 12 (1932) ....................................................................................................................................... 27 
Nat’l Broadcasting Co. v. United States, 
319 U.S. 190 (1943) ..................................................................................................................................... 27 
Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 
545 U.S. 967 (2005) ..................................................................................................................................... 15 
Nken v. Holder, 
556 U.S. 418 (2009) ..................................................................................................................................... 32 
Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 
499 U.S. 117 (1991) ..................................................................................................................................... 18 
P.J.E.S. v. Wolf, 
No. 20-2245, 2020 WL 5793305 (D.D.C. Sept. 25, 2020)..................................................................... 25 
Productos Carnic, S.A. v. Central American Beef & Seafood Trading Co., 
621 F.2d 683 (5th Cir. 1980) ...................................................................................................................... 13 
Ridgely v. Federal Emergency Management Agency, 
512 F.3d 727 (5th Cir. 2008) ............................................................................................................... 10, 11 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020) ............................................................................ 34 
Rural Cellular Ass’n v. FCC, 
588 F.3d 1095 (D.C. Cir. 2009) ................................................................................................................. 31 
 

vi 
 
Russell v. United States, 
471 U.S. 858 (1985) ..................................................................................................................................... 26 
Sampson v. Murray, 
415 U.S. 61 (1974) ....................................................................................................................................... 12 
Sea Robin Pipeline Co. v. FERC, 
127 F.3d 365 (5th Cir. 1997) ...................................................................................................................... 31 
Smith v. Turner, 
48 U.S. 283 (1849) ......................................................................................................................................... 2 
Summers v. Earth Island Inst., 
555 U.S. 488 (2009) ..................................................................................................................................... 35 
Talleywhacker, Inc. v. Cooper, 
465 F. Supp. 3d 523 (E.D.N.C. June 8, 2020) ......................................................................................... 33 
Tigges v. Northam, 
No. 20-410, 2020 WL 4197610 (E.D. Va. July 21, 2020) ............................................................... 33, 34 
TJM 64, Inc. v. Harris, 
No. 20-02498, 2020 WL 4352756 (W.D. Tenn. July 29, 2020) ..................................................... 22, 33 
Touby v. United States, 
500 U.S. 160 (1991) .............................................................................................................................. 27, 28 
Trump v. Hawaii, 
138 S. Ct. 2392 (2018) ................................................................................................................................. 35 
U.S. Steel Corp. v. EPA, 
595 F.2d 207 (5th Cir. 1979) ...................................................................................................................... 30 
United States v. Kaluza, 
780 F.3d 647 (5th Cir. 2015) ...................................................................................................................... 21 
United States v. Oakland Cannabis Buyers’ Co-op., 
532 U.S. 483 (2001) ..................................................................................................................................... 25 
Vista Health Plan, Inc. v. U.S. Dep’t of Health & Human Servs., 
No. 18-824, 2020 WL 6380206 (W.D. Tex. Sept. 21, 2020) ................................................................. 30 
Whitman v. Am. Trucking Ass’ns, 
531 U.S. 457 (2001) .............................................................................................................................. 27, 28 
Winter v. Natural Res. Def. Council, 
555 U.S. 7 (2008) .............................................................................................................................. 9, 10, 23 

vii 
 
Statutes 
5 U.S.C. § 553 ................................................................................................................................................... 29 
5 U.S.C. § 706 ................................................................................................................................................... 22 
20 U.S.C. § 3508 ................................................................................................................................................. 3 
42 U.S.C. § 264 ........................................................................................................................................... passim 
Act of May 27, 1796, 1 Stat. 474 (1796) ......................................................................................................... 2 
Act of Feb. 25, 1799, 1 Stat. 619 (1799) ......................................................................................................... 2 
Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 (1893) ........................................................................................ 2 
New York Tenant Safe Harbor Act, 2020 N.Y. Sess. Laws (McKinney), S.8192B/A.10290B        
(Jun. 30, 2020) ................................................................................................................................................ 5 
Pub. L. No. 96-88, 93 Stat. 695 (Oct. 17, 1979) ............................................................................................ 3 
Pub. L. No. 116-136, 134 Stat. 281 (Mar. 27, 2020) .............................................................................. 5, 25 
Legislative Materials 
H.R. Rep. No. 78-1364 (1944) .................................................................................................................... 2, 3 
Regulations 
42 C.F.R. § 70.2 .......................................................................................................................................... passim 
31 Fed. Reg. 8855, 80 Stat. 1610 (June 25, 1966) .......................................................................................... 3 
65 Fed. Reg. 49906 (Aug. 16, 2000) ................................................................................................................ 3 
85 Fed. Reg. 15337 (Mar. 13, 2020) ........................................................................................................... 4, 5 
85 Fed. Reg. 55292 (Sept. 4, 2020) .......................................................................................................... passim 
Other Authorities 
11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice and Procedure 
(3d ed. 2013) ................................................................................................................................................... 9 
 

1 
 
INTRODUCTION 
 
 
These are extraordinary times.  The United States is affected by a global pandemic, during 
which the respiratory disease COVID-19 has infected tens of millions worldwide and resulted in the 
deaths of more than 280,000 people within our borders.  See Temporary Halt in Residential Evictions 
To Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55292, 55292 (Sept. 4, 2020).  The disease 
spreads easily between persons within close contact.  Id.  It can cause severe illness but may also be 
transmitted by persons who are pre-symptomatic or asymptomatic—meaning that infected persons 
have the potential to infect others unknowingly.  Id.  Despite drastic measures by federal, state, and 
local governments, COVID-19 continues to spread.  Id. 
 
In light of these rare circumstances, the Centers for Disease Control and Prevention (CDC) 
exercised its authority under the Public Health Service Act (PHSA) and its implementing regulations 
to order a temporary halt in residential evictions to prevent the further spread of COVID-19 (the 
Order).  Id.  CDC found that this moratorium is an effective public health measure because, among 
other things, it facilitates self-isolation by ill and at-risk persons, eases implementation of stay-at-home 
and social distancing measures, and decreases the likelihood that persons will experience homelessness 
or move in to congregate settings.  Id. at 55295–96.  The Order protects some of society’s most 
vulnerable:  low-income persons who have lost work or incurred extraordinary medical bills, have 
made every effort to pay rent, and would lack housing if evicted.  Id. at 55297.  It does not excuse any 
tenant’s obligation to pay rent or impair any landlord’s ability to impose fees, interest, or other 
penalties short of eviction.  Id. at 55292.  Nor does it prevent landlords from evicting tenants for 
reasons other than failure to pay rent, such as criminal activity or property damage.  Id. at 55294. 
 
Plaintiffs are a residential landlord and an association of residential landlords who seek 
emergency injunctive relief to invalidate the Order.  But Plaintiffs cannot meet any of the elements 
required to obtain such extraordinary relief.  In particular, and as multiple other courts have found in 

2 
 
denying motions seeking to enjoin the Order, there is no irreparable harm where a plaintiff’s injury is 
monetary, and the mere recitation of constitutional claims cannot cure this defect.  See Tiger Lily LLC 
v. U.S. Dep’t of Housing & Urban Dev., ECF No. 69, No. 20-2692, slip op. at 16–22 (W.D. Tenn. Nov. 
6, 2020), Exhibit A; Brown v. Azar, No. 20-3702, 2020 WL 6364310, at *17–21 (N.D. Ga. Oct. 29, 
2020); see also Order, KBW Inv. Props. LLC v. Azar, ECF No. 16, No. 20-4852 (S.D. Ohio Sept. 25, 
2020), Exhibit B (denying temporary restraining order).  Moreover, Plaintiffs have not fulfilled their 
burden to show that any of their claims is likely to succeed on the merits.  And the balance of the 
harms and public interest overwhelmingly favor the government.  For all of these reasons, Plaintiffs’ 
motion should be denied. 
BACKGROUND 
 
I. 
Statutory and Regulatory Background 
 
The federal government has a long history of acting to combat the spread of communicable 
disease.  Congress enacted the first federal quarantine law in 1796 in response to a yellow fever 
outbreak, authorizing the President to direct federal officials to help states enforce quarantine laws.  
Act of May 27, 1796, ch. 31, 1 Stat. 474 (1796) (repealed 1799); see Smith v. Turner, 48 U.S. 283, 300 
(1849).  Following a subsequent yellow fever outbreak, Congress replaced this Act with a federal 
inspection system for maritime quarantines.  Act of Feb. 25, 1799, ch. 12, 1 Stat. 619 (1799).  And in 
1893, Congress authorized the Secretary of the Treasury to adopt additional regulations to prevent the 
introduction of disease into the United States or across state lines where the Secretary considered state 
or local regulation inadequate.  Act of Feb. 15, 1893, ch. 114, 27 Stat. 449 (1893). 
 
In 1944, Congress enacted the provision at issue here, section 361 of the PHSA, as part of a 
broader effort to consolidate and clarify existing public health laws.  H.R. Rep. No. 78-1364, at 1 
(1944).  In section 361(a), Congress broadened the federal government’s “basic authority to make 
regulations to prevent the spread of disease into this country or between the States.”  Id. at 24.  For 

3 
 
example, Congress removed references to specific diseases to provide federal health authorities 
flexibility to respond to new types of contagion and “expressly sanction[ed] the use of conventional 
public-health enforcement methods” by the government in disease-control efforts.  Id. at 24–25. 
 
The resulting statute, 42 U.S.C. § 264, authorizes the Secretary of Health and Human Services 
(HHS)1 “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 possessions, or from one State or possession into any other State or possession.”  42 
U.S.C. § 264(a).  Subsection (a) further clarifies that “[f]or 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 contaminated as to be 
sources of dangerous infection to human beings, and other measures, as in his judgment may be 
necessary.”  Id.  Subsection (b) imposes specific limits on the Secretary’s ability to “provide for the 
apprehension, detention, or conditional release of individuals”—a power not referenced in 
subsection (a)—permitting such impositions on a person’s physical movement only for diseases 
specified by Executive Order.  Id. § 264(b).  Subsections (c) and (d) set further limits on the detention 
of individuals.  See id. § 264(c)–(d).  The final subsection provides that the statute and any regulation 
adopted thereunder supersede state law “to the extent that such a provision conflicts with an exercise 
of Federal authority.”  Id. § 264(e).   
 
The Secretary of HHS has promulgated regulations implementing these provisions and 
delegating their enforcement to CDC.  See 42 C.F.R. pt. 70; 65 Fed. Reg. 49906, 49907 (Aug. 16, 2000).  
                                                 
1 Although the statute assigns authority to the Surgeon General, Reorganization Plan No. 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); see also Pub. L. No. 96-88, § 509(b) (Oct. 17, 1979), 
93 Stat. 695 (codified at 20 U.S.C. § 3508(b)).  The Office of the Surgeon General was re-established 
in 1987, but the Secretary has retained these authorities. 

4 
 
In particular, 42 C.F.R. § 70.2 provides the CDC Director (or his or her authorized representative) 
with discretion to take measures to control contagion.  Specifically, where the CDC Director 
“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” between or among States, he is empowered to “take such measures to prevent such spread 
of the diseases as he/she deems reasonably necessary.”  42 C.F.R. § 70.2.  These measures include, 
but are not limited to, “inspection, fumigation, disinfection, sanitation, pest extermination, and 
destruction of animals or articles believed to be sources of infection.”  Id.  Other regulations authorize 
CDC to limit interstate travel, see id. § 70.3; apprehend and detain persons, id. § 70.6; and conduct 
medical examinations, id. § 70.12, to control the spread of disease.  The regulations additionally provide 
penalties for violations of these regulations.  Id. § 70.18.   
II. 
The COVID-19 Pandemic  
 
In December 2019, the novel coronavirus SARS-CoV-2 was first detected in Wuhan, Hubei 
Province, in the People’s Republic of China.  See Declaring a National Emergency Concerning the 
Novel Coronavirus Disease (COVID-19) Outbreak, 85 Fed. Reg. 15337 (Mar. 13, 2020).  The virus 
causes a respiratory disease known as COVID-19.  Id.   
 
COVID-19 is a serious illness that spreads easily.  COVID-19 poses a risk of “severe” 
respiratory illness, meaning that persons who have the disease may require hospitalization, intensive 
care, or the use of a ventilator.  85 Fed. Reg. at 55292.  Severe cases of COVID-19 may be fatal.  Id.  
The likelihood of becoming severely ill is greater among certain vulnerable populations.  Id. at 55295.  
CDC has cautioned that the virus that causes COVID-19 transmits “very easily and sustainably” 
between people within “close contact”—approximately six feet—of one another.  Id. at 55293.  
Persons not displaying symptoms are capable of transmitting the virus.  Id. at 55292. 
 
COVID-19 spread quickly across the globe.  See 85 Fed. Reg. at 15337.  On January 31, 2020, 

5 
 
the Secretary of HHS declared a public health emergency.  HHS, Determination that a Public Health 
Emergency 
Exists 
(Jan. 
31, 
2020), 
https://www.phe.gov/emergency/news/healthactions/
phe/Pages/2019-nCoV.aspx.  On March 11, 2020, the World Health Organization classified the 
COVID-19 epidemic as a pandemic.  85 Fed. Reg. at 15337.  And on March 13, 2020, the President 
declared the outbreak a national emergency.  Id.  By late August 2020, the virus had spread to all 50 
states.  Id. at 55292.  To date, it has infected more than fourteen million and caused the death of more 
than 280,000 persons within the United States.  See CDC COVID Data Tracker, 
https://covid.cdc.gov/covid-data-tracker (last visited Dec. 7, 2020).  New cases arise daily, see id., and 
CDC has called COVID-19 “a historic threat to public health,” 85 Fed. Reg. at 55294. 
 
To combat the spread of this highly contagious, widespread, deadly virus, governments at all 
levels have taken “unprecedented or exceedingly rare actions” to protect the public.  Id.  These include 
border closures, travel restrictions, stay-at-home orders, and mask requirements.  Id.  In March 2020, 
Congress provided a 120-day moratorium on certain eviction filings to tenants residing in certain 
federally financed rental properties.  CARES Act, Pub. L. No. 116-136, § 4024, 134 Stat. 281 (Mar. 27, 
2020).  Although this measure temporarily helped mitigate the public health effects of tenant 
displacement during the pandemic, it expired on July 24, 2020.  85 Fed. Reg. at 55294.  And while 
certain states implemented their own temporary eviction moratoria, see, e.g., New York Tenant Safe 
Harbor Act, 2020 N.Y. Sess. Laws (McKinney), S.8192B/A.10290B (Jun. 30, 2020), many such 
measures have also expired, see 85 Fed Reg. at 55296 n.36.  Other states provided no separate 
protection for renters during the pandemic.  Id. 
III. 
The CDC Order 
 
On September 4, 2020, CDC issued an Order under 42 U.S.C. § 264(a) and 42 C.F.R. § 70.2 
providing for a temporary halt on residential evictions until December 31, 2020.  85 Fed. Reg. at 
55292.  The agency found this moratorium “a reasonably necessary measure . . . to prevent the further 

6 
 
spread of COVID-19,” and that state and local measures that did not meet or exceed its protections 
were insufficient to prevent interstate spread.  Id. at 55296.  CDC determined that eviction moratoria 
help reduce the risk of transmission of COVID-19 by facilitating self-isolation for sick and high-risk 
persons, easing implementation of stay-at-home orders and social distancing measures, reducing the 
need for congregate housing, and helping to prevent homelessness.  Id.  at 55294. 
 
As CDC explained, evictions present a public health concern because the movement of evicted 
renters could lead to “multiple outcomes that increase the risk of COVID-19 spread.”  Id.  First, 
evicted renters are likely to move in with friends or family, leading to potential household crowding 
with new sources of infection.  Id.  This increases the risk of spreading COVID-19 because 
“transmission occurs readily within households,” and “household contacts are estimated to be 6 times 
more likely to become infected by an index case of COVID-19 than other close contacts.”  Id.  Second, 
the risk of transmission in shared housing increases exponentially if evicted persons move into 
congregate settings, such as homeless shelters, transitional housing, or domestic violence shelters.  Id.  
Maintaining social distance may be difficult in these settings, especially where residents must share 
small spaces, like stairwells and elevators, or equipment, such as kitchen or laundry facilities.  Id.  
Indeed, “[e]xtensive outbreaks of COVID-19 have been identified in homeless shelters,” including in 
Seattle, Boston, and San Francisco.  Id. at 55295.  These public health risks “may increase seasonally” 
as persons experiencing homelessness seek shelter in colder months.  Id. at 55296.  Finally, evicted 
persons may experience unsheltered homelessness, which places them at “higher risk for infection 
when there is community spread of COVID-19.”  Id. at 55295.  Their vulnerability to COVID-19 is 
higher due to exposure to the elements, as well as inadequate access to hygiene, sanitation, and 
healthcare.  Id.  The risk of unsheltered homelessness has increased during the pandemic, where safety 
precautions at shelters have reduced their capacities.  Id. 
 
In addition, research suggests that persons who would be evicted and become homeless as a 

7 
 
result “include many who are predisposed to developing severe disease from COVID-19.”  Id.  For 
example, evicted persons are more likely to experience hypertension, an underlying condition 
associated with severe COVID-19.  Id.  And among patients with COVID-19, homelessness has been 
associated with an increased likelihood of hospitalization.  Id. at 55296. 
 
These negative public health consequences could become enormous if evictions were to 
proceed unchecked during the pandemic.  Id. at 55294–95.  Research suggests that as many as 30 to 
40 million people in the United States could be at risk of eviction in the absence of state and local 
protections.  Id. at 55295.  Given that approximately 15 percent of moves each year are estimated to 
be interstate, “mass evictions would likely increase the interstate spread of COVID-19.”  Id. 
 
CDC thus determined that it was reasonably necessary to prevent the interstate spread of 
COVID-19 to order that “a landlord . . . shall not evict any covered person from any residential 
property in any State . . . that provides a level of public-health protections below the requirements 
listed in [the] Order.”  Id. at 55296.  To qualify as “covered persons,” tenants must certify under 
penalty of perjury that they have (1) used best efforts to obtain government assistance to make rental 
payments; (2) expect to earn less than $99,000 (or $198,000 if filing a joint tax return) in annual income 
in 2020, were not required to pay income taxes in 2019, or qualified for a stimulus check under the 
CARES Act; (3) are unable to pay full rent due to “substantial loss of household income, loss of 
compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses”; 
(4) are using best efforts to make partial payments; (5) would likely experience homelessness or need 
to move into a shared residence if evicted; (6) understand that rent obligations still apply; and 
(7) understand that the moratorium ends on December 31, 2020.  Id. at 55297.   
 
The Order does not alter a tenant’s obligation to pay rent or comply with any other contractual 
obligation.  Id. at 55294.  It does not prevent the accrual or collection of fees, penalties, or interest.  
Id.  It also does not prevent evictions of persons who do not qualify as “covered persons,” or evictions 

8 
 
based on circumstances other than nonpayment of rent, including criminal activity, damage to 
property, or violation of contractual obligations other than the timely payment of rent.  Id. 
 
Following the Order’s issuance, CDC provided further guidance regarding its operation.  See 
CDC/HHS Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID-19, 
Frequently Asked Questions, available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/ 
eviction-moratoria-order-faqs.pdf (FAQs).  This guidance confirms that the Order is “not intended 
to terminate or suspend the operations of any state or local court.”  Id. at 1.  “The Order does not,” 
for example, “preclude a landlord from challenging the truthfulness of a tenant’s declaration in any 
state or municipal court.”  Id. at 6.  “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.”  Id. at 1.  The only two federal courts to consider the 
question have both credited the FAQs’ interpretation of the Order.  See Memorandum and Order, KC 
Tenants v. Byrn, No. 20-784, 2020 WL 7063361 (W.D. Mo. Nov. 30, 2020); Brown, 2020 WL 6364310, 
at *15. 
IV. 
Plaintiffs’ Claims 
 
Plaintiffs are a residential landlord and a trade association representing such landlords.  Compl. 
¶¶ 12–13, ECF No. 1.  Chambless Enterprises, LLC, alleges that it has at least two tenants who have 
fallen behind on rent and submitted a declaration claiming protection from the Order.  Id. ¶¶ 37, 39; 
see also Chambless Decl. ¶¶ 8, 12, ECF No. 5-2.  The Apartment Association of Louisiana alleges that 
it “has members who have received Renter’s Declarations from non-paying tenants whom they would 
like to evict.”  Id. ¶ 42; see also Esponge Decl. ¶ 6, ECF No. 5-2 (describing what she has “heard from 
many Louisiana landlords and management companies”). Plaintiffs allege that the Order violates the 
Administrative Procedure Act (APA) because it exceeds CDC’s authority, Compl. ¶¶ 46–62; was not 
issued pursuant to notice-and-comment rulemaking, id. ¶¶ 73–79; and is arbitrary and capricious, id. 

9 
 
¶¶ 80–86.  Plaintiffs also assert that the Order violates the constitutional nondelegation doctrine.  Id. 
¶¶ 63–72.  They seek declaratory and injunctive relief.  Id. at 17-18. 
ARGUMENT 
 
Plaintiffs’ motion for a preliminary injunction should be denied because Plaintiffs have not 
demonstrated any of the four elements necessary to warrant such extraordinary relief. 
I. 
Plaintiffs Are Not Entitled to Extraordinary Injunctive Relief. 
 
 
 
“A preliminary injunction is an extraordinary remedy never awarded as of right.”  Winter v. 
Natural Res. Def. Council, 555 U.S. 7, 24 (2008).  The party seeking a preliminary injunction bears the 
burden to show (1) “a substantial threat of irreparable injury,” (2) “a substantial likelihood of success 
on the merits,” (3) “that the threatened injury if the injunction is denied outweighs any harm that will 
result if the injunction is granted,” and (4) “that the grant of an injunction will not disserve the public 
interest.”  Jordan v. Fisher, 823 F.3d 805, 809 (5th Cir. 2016).  A preliminary injunction should not be 
“granted unless the party seeking it has clearly carried the burden of persuasion on all four 
requirements.”  Id. (citation omitted); see also, e.g., Lake Charles Diesel, Inc., v. Gen. Motors Corp., 328 F.3d 
192, 203 (5th Cir. 2003).  The plaintiff’s burden is even higher where, as here, it seeks a preliminary 
injunction that would alter the status quo.  See, e.g., Martinez v. Mathews, 544 F.2d 1233, 1243 (5th Cir. 
1976).  Preliminary injunctions that go “well beyond simply maintaining the status quo” are 
“particularly disfavored[] and should not be issued unless the facts and law clearly favor the moving 
party.”  Id. 
A. Plaintiffs Have Not Shown Irreparable Injury. 
 
“Perhaps the single most important prerequisite for the issuance of a preliminary injunction is 
a demonstration that if it is not granted the applicant is likely to suffer irreparable harm before a 
decision on the merits can be rendered.”  11A Charles Alan Wright, Arthur R. Miller & Mary Kay 
Kane, Federal Practice and Procedure § 2948.1 (3d ed. 2013).  To show irreparable harm, a party must 

10 
 
demonstrate “a significant threat of injury from the impending action, that the injury is imminent, and that 
money damages would not fully repair the harm.”  Humana, Inc. v. Jacobson, 804 F.2d 1390, 1394 (5th 
Cir. 1986) (emphases added).   Here, each of Plaintiffs’ assertions of irreparable harm fails.  Indeed, 
three federal courts have denied motions for expedited relief for failure to show irreparable harm 
where plaintiffs asserted substantially similar claims of harm arising from the Order.  See Tiger Lily, slip 
op. at 16–22; Brown, 2020 WL 6364310, at *17–21; KBW Inv. Props. LLC, Order. 
1. The Mere Assertion of Constitutional Theories Does Not Establish Irreparable Injury. 
 
 
Plaintiffs first contend that because their complaint includes a constitutional theory, 
irreparable harm is automatically established.  See Mot. for Prelim. Inj. 19–20, ECF No. 5-1 (“Pls.’ 
Mem.”).  That is wrong for two reasons.  For one, this is primarily a statutory case, not a constitutional 
one:  the overwhelming bulk of Plaintiffs’ motion contends that the Order (1) exceeds CDC’s statutory 
and regulatory authority, see id. at 3–16; or (2) violates the APA, see id. at 18–19.  Plaintiffs’ only 
constitutional claim arises under the nondelegation doctrine, see id. at 16–18, which the Supreme Court 
has not applied to invalidate a federal statute since the 1930s.  Because this claim is extraordinarily 
unlikely to succeed, see infra pp. 26-28, it cannot support a finding of irreparable harm. 
 
Regardless, even if Plaintiffs’ nondelegation claim had any hope of success, that claim would 
not support a finding of irreparable harm here.  While Plaintiffs cite Winter for the proposition that 
courts presume irreparable harm in the presence of constitutional claims, that opinion neither contains 
the language that Plaintiffs quote nor otherwise stands for that proposition.  To the contrary, Plaintiffs’ 
only Circuit authority suggests that violations of certain rights like speech and privacy can constitute 
irreparable harm.  See Deerfield Med. Ctr. v. Deerfield Beach, 661 F.2d 328, 338 (5th Cir. 1981) (cited in 
Pls.’ Mem. 20).2  As courts in this Circuit have explained, “[t]hat the nature of certain constitutional 
                                                 
2 Nor does Ridgely v. Federal Emergency Management Agency, 512 F.3d 727 (5th Cir. 2008) (cited in Pls.’ 
Mem. 19–20), offer Plaintiffs any support on this point.  That case vacated a district court’s preliminary 

11 
 
violations, such as violations of the freedoms of speech and privacy, is such that they necessarily cause 
irreparable harm does not, however, establish that any alleged constitutional violation does so.”  
Lambert v. Bd. of Comm’rs of Orleans Levee Dist., No. CV 05-5931, 2006 WL 8456316, at *7 (E.D. La. 
Mar. 22, 2006); see also, e.g., Bouchard Transp. Co. v. Dep’t of Homeland Sec., No. 20-1116, 2020 WL 
1689869, at *2 (E.D. La. Apr. 7, 2020) (similar).  As two other federal courts recently explained in 
denying preliminary injunctions in similar challenges to the CDC Order, “[m]erely asserting a 
constitutional claim is insufficient to trigger a finding of irreparable harm,” particularly where the 
alleged injury “involves neither free speech nor invasion of privacy.”  Brown, 2020 WL 6364310, at 
*18; see also Tiger Lily, slip op. at 20–22.    
2. The Order Does Not Interfere With Plaintiffs’ Possession Of Their Property. 
 
 
Plaintiffs further assert that they are suffering irreparable injury because they cannot regain 
possession of their properties.  See Pls.’ Mem. 21.  Plaintiffs’ only Circuit authority does not support 
that theory.  See supra 10 n.2 (addressing Ridgely, 512 F.3d 727).  And while there are cases holding that 
a permanent deprivation of real property may constitute irreparable injury, see, e.g., Minard Run Oil Co. v. 
U.S. Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011) (cited in Pls.’ Mem. 21) (permanent loss of oil and 
gas); Carpenter Tech. Corp. v. City of Bridgeport, 180 F.3d 93, 97 (2d Cir. 1999) (cited in Pls.’ Mem. 21) 
(permanent taking),3 those cases do not apply here for at least two reasons. 
 
First, as the Brown court explained, such cases “are inapposite because all involve permanent 
                                                 
injunction because the plaintiffs had failed to demonstrate a likelihood of success on the merits, and 
did not address irreparable harm at all.  It certainly did not “accept[] the premise that if such [a due 
process property] interest existed it would justify finding irreparable harm,” Pls.’ Mem. 21, a 
hypothetical scenario it had no cause to address. 
3 Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1090 (7th Cir. 
2008) (cited in Pls.’ Mem.’ 21), likewise provides no support to Plaintiffs.  The holding there was that 
“loss of property, employees, or its entire business, as well as damage to its goodwill” could amount 
to irreparable injury.  It does not stand for the proposition that any interference with property rights 
amounts to irreparable harm.  K-Mart Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989), 
similarly involved injuries to goodwill and to K-Mart’s presentation of its business to the public. 

12 
 
deprivation or destruction of property.”  Brown, 2020 WL 6364310, at *21.  Just as in Brown, there is 
“no evidence before the Court” that Plaintiffs “are in danger of losing those properties.”  Id.  Instead, 
the Order merely limits, on a temporary basis, landlords’ ability to invoke one remedy for non-payment 
of rent.  It does not preclude evictions for other reasons, nor does it affect Plaintiffs’ title to their 
property.  And second, as the Court observed in Tiger Lily, “Plaintiffs do not allege, nor is there any 
evidence before the Court, that any of the Plaintiffs actually reside in their properties or that they seek 
to reside in a property but have been prevented from doing so because it is occupied by a tenant who 
is a ‘covered person’ under the Halt Order.”  Tiger Lily, slip op. at 19; accord Brown, 2020 WL 6364310, 
at *21 (“no evidence before the Court that any of the individual plaintiffs reside in the properties”).  
Where property is used as an “investment property,” the plaintiff can “recoup its investment loss 
through money damages.”  Mount Clemens Inv. Grp., LLC v. Borman’s Inc., No. 10-12679, 2010 WL 
3998095, at *5 (E.D. Mich. Oct. 12, 2010). 
3. Plaintiffs’ Alleged Economic Losses Are Compensable. 
 
Plaintiffs likewise cannot satisfy their burden by suggesting that it may be difficult to enforce 
money judgments against their tenants.  See Pls.’ Mem. 21–22.  Indeed, nothing in the Order prevents 
Plaintiffs from suing their tenants for unpaid rent.  See Tiger Lily, slip op. at 18; see also Elmsford Apt. 
Assocs., LLC v. Cuomo, No. 20-4062, 2020 WL 3498456, at *15 (S.D.N.Y. June 29, 2020).  And “as a 
general rule,” “a preliminary injunction is an inappropriate remedy where the potential harm to the 
movant is strictly financial.”  Atwood Turnkey Drilling, Inc. v. Petroleo Brasileiro, S.A., 875 F.2d 1174, 1179 
(5th Cir. 1989).  Even economic injuries that are “substantial, in terms of money, time and energy 
necessarily expended in the absence of a stay, are not enough.”  Sampson v. Murray, 415 U.S. 61, 90 
(1974).   
 
Plaintiffs contend that this doctrine does not apply because it may be difficult to collect money 
judgments for unpaid rent entered against their tenants.  See Pls.’ Mem. 22.  But the certainty of 

13 
 
monetary relief is not required; even “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.”  Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2020) 
(emphasis added).4  And in any event, Plaintiffs offer only speculation that no monetary judgment 
could be enforced against their tenants.  Notably, the form declaration does not require tenants to 
allege that they are insolvent; they need only allege that they are currently unable to satisfy their rent 
obligations in full.  See 85 Fed. Reg. at 55297.  As in Brown, Plaintiffs have provided no information 
about “the occupation of any of the tenants, 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.”  2020 WL 6364310, at 
*20.  Nor do they indicate whether their tenants have any illiquid assets against which they might seek 
to enforce a money judgment.  As in Brown, “although the tenants may not currently be able to afford 
their rent,” it does not follow that “they will likely never be able to collect a judgment.”  Id. at *20.  
Indeed, tenants may become eligible for various government benefits, id., or they may find 
employment in the future.  Plaintiffs, however, offer no evidence to show that there is no “possibility 
that adequate compensatory or other corrective relief will be available at a later date,” Dennis Melancon, 
Inc., 703 F.3d at 279—and that “lack of evidence precludes a finding of irreparable harm,” Brown, 2020 
                                                 
4 Plaintiffs’ cases are distinguishable.  Productos Carnic, S.A. v. Central American Beef & Seafood Trading 
Co., 621 F.2d 683, 686 (5th Cir. 1980) (cited in Pls.’ Mem. 21), involved a situation in which, absent 
an injunction, “a meaningful decision on the merits would be impossible” because the defendant 
would move the subject property out of the court’s jurisdiction.  Hughes Network Sys., Inc. v. InterDigital 
Commc’ns Corp., 17 F.3d 691, 694 (4th Cir. 1994) (cited in Pls.’ Mem. 22), simply noted that preliminary 
injunctions have sometimes been held appropriate where there is a sufficient showing that monetary 
damages may never be collected because the defendant will become insolvent before judgment—a 
showing that Plaintiffs have not made here.  Finally, Basicomputer Corp. v. Scott, 791 F. Supp. 1280 (N.D. 
Ohio 1991) (cited in Pls.’ Mem. 22), addressed insolvency only in dicta, finding it “clearly inapplicable 
to this case.”  Id. at 1292. 

14 
 
WL 6364310, at *20. 
 
Moreover, the Order does not bar Plaintiffs from evicting their tenants forever; it merely 
postpones that remedy for a limited time in furtherance of urgent public health goals.  See Brown, 
2020 WL 6364310, at *16 (“[T]he 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 a court in the Southern District of Ohio recently explained in denying a temporary 
restraining order, “Plaintiff has not demonstrated that enforcement of the CDC’s Order will cause it 
irreparable harm,” because the Order only “postpones Plaintiff’s collection of debt until after its 
expiration.”  Order, KBW Inv. Props. LLC. 
B. Plaintiffs Have Not Shown A Likelihood of Success on the Merits. 
 
Although Plaintiffs’ complaint raises a number of challenges to the Order, they fail to carry 
their burden to show a likelihood of success on any of them. 
1. CDC Acted within Its Statutory and Regulatory Authority. 
 
 
Plaintiffs first contend that the Order exceeds CDC’s statutory and regulatory authority.  Pls.’ 
Mem. 3–16.  But Congress vested the Secretary of HHS with broad authority to control the spread of 
dangerous infectious diseases, which the Secretary has delegated to the public health experts at CDC.  
See 42 U.S.C. § 264; 42 C.F.R. § 70.2.  CDC acted both within the scope of its delegated authority and 
in the interest of public health in issuing the challenged Order.  Accord Brown, 2020 WL 6364310, at 
*6–10.  Plaintiffs’ arguments to the contrary fail. 
a. The Order falls within CDC’s broad authority under the PHSA. 
 
 
Section 361 of the PHSA empowers the Secretary “to make and enforce such regulations as in 
his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases” 
from abroad or among the states.  42 U.S.C. § 264(a) (emphasis added).  The plain text of the statute 
evinces a legislative determination to defer to the “judgment” of public health authorities about what 

15 
 
measures they deem “necessary” to prevent contagion, see id.—a determination made in the light of 
history and experience, given the havoc wreaked by past scourges like yellow fever, see supra pp. 2–4.  
Indeed, Congress’s use of the phrase “such regulations as in his judgment are necessary” shows that 
it intended to defer to agency expertise, as “Congress knows to speak in plain terms when it wishes to 
circumscribe, and in capacious terms when it wishes to enlarge, agency discretion.”  City of Arlington v. 
FCC, 569 U.S. 290, 296 (2013).  And the Supreme Court has recognized that similar congressional 
delegations of authority that empower agencies to take actions that are “necessary” provide “broad 
power to enforce all provisions of [a] statute.”  Gonzalez v. Oregon, 546 U.S. 243, 258–59 (2006); see also, 
e.g., Nat’l Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 U.S. 967, 980–81 (2005) (statute 
permitting agency to “prescribe such rules and regulations as may be necessary in the public interest” 
undisputedly provided agency authority to promulgate order (citation omitted)).   
 
The Supreme Court has specifically explained that “[w]hen Congress undertakes to act in areas 
fraught with medical and scientific uncertainties, legislative options must be especially broad and 
courts should be cautious not to rewrite legislation.”  Marshall v. United States, 414 U.S. 417, 427 (1974).  
As the Brown court explained, “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.”  2020 WL 6364310, 
at *7; see also Louisiana v. Mathews, 427 F. Supp. 174, 176 (E.D. La. 1977) (in 42 U.S.C. § 264, “Congress 
has granted broad, flexible powers to federal health authorities who must use their judgment in 
attempting to protect the public against the spread of communicable disease”). 
 
The examples Congress gave of specific measures the Secretary may take to control infectious 
disease—which are illustrative, not exhaustive—underscore the breadth of this authority, showing 
that it may infringe on personal liberties or property rights where appropriate to protect the public 
health.  See Indep. Turtle Farmers of La. v. United States, 703 F. Supp. 2d 604, 619–20 (W.D. La. 2010) 

16 
 
(explaining that “the list does not act as a limitation upon the types of regulations that may be enacted 
under Section 361 [of the PHSA]”).  Such measures include the authority to impose restrictions on 
individuals’ freedom of movement, including the “apprehension, detention, or conditional release of 
individuals.”  42 U.S.C. § 264(b)–(c).  They also include intrusions on private property, such as its 
“inspection, fumigation, disinfection, sanitation,” and even “destruction.”  Id. § 264(a).  The terms of 
the statute—including the examples of measures that the Secretary may adopt—call for the Secretary’s 
expert judgment to determine what regulations may be appropriate to “prevent the introduction, 
transmission, or spread of communicable diseases.”  Id.  This point is bolstered by the fact that, 
although subsection (a) makes no mention of the Secretary’s ability to detain persons, it is plainly 
contemplated as within the scope of what may be “necessary” in his “judgment,” given the restrictions 
placed on any such regulations in subsections (b) through (d).  See id. § 264(a)–(d).  The Brown court 
agreed: “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.”  2020 WL 6364310, at *8. 
 
The regulation, which largely paraphrases the statutory language, is consistent with Congress’s 
intent to provide flexibility in combatting the spread of disease.  See 42 C.F.R. § 70.2.  It allows the 
CDC Director to “take such measures to prevent such spread of the diseases as he/she deems 
reasonably necessary.”  Id.  It further makes clear that, in order to control disease transmission, 
intrusions on private property, “including inspection, fumigation, disinfection, sanitation,” and even 
“destruction,” may be required.  Id.  The Brown court correctly observed that, because the statute and 
the regulation are so similar, “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 

17 
 
likewise has the same authority.”5  2020 WL 6364310, at *8.   
 
Here, CDC’s determination that a “temporary halt in evictions” is a “reasonably necessary 
measure under 42 C.F.R. 70.2 to prevent the further spread of COVID–19 throughout the United 
States,” 85 Fed. Reg. at 55296, is well supported and falls firmly within the scope of its authority.  A 
number of findings underpin CDC’s decision.  First, “[t]he virus that causes COVID-19 spreads very 
easily and sustainably between people who are in close contact with one another (within about 6 feet).”  
Id. at 55293.  In addition, research suggests 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 55295.  The CDC has also determined that, in light of statistics regarding interstate moves, such 
“mass evictions would likely increase the interstate spread of COVID-19.”  Id.   
 
CDC thus found that, in the context of this pandemic, eviction moratoria are an “effective 
public health measure utilized to prevent the spread of communicable disease.”  Id. at 55294.  Eviction 
moratoria “facilitate self-isolation” by ill or at-risk persons; aid the implementation of “stay-at-home 
and social distancing directives”; and by reducing homelessness, decrease “the likelihood of individuals 
moving into close quarters in congregate settings.”  Id.  Evictions, on the other hand, increase the risk 
of COVID-19 spread by increasing the likelihood that evicted renters will move into “shared housing 
or other congregate settings” that pose a high risk of transmission, id., or experience unsheltered 
homelessness, where persons are at a higher risk of infection due to lack of access to hygienic 
measures, sanitation, and medical care, as well as exposure to the elements, id. at 55294–95.  These are 
among the reasons that the Order constitutes a “reasonably necessary” measure under the regulations 
and is thus within the broad authority of CDC. 
                                                 
5 The regulation does impose the additional requirement that CDC “determine[] that the measures 
taken by the health authorities of state or local governments are insufficient to prevent the spread of 
disease.”  Brown, 2020 WL 6364310, at *8; see 42 C.F.R. § 70.2.  CDC has made that finding here.  See 
id. at *13–14 (citing 85 Fed. Reg. at 55295–96 & n.36).  

18 
 
b. Canons of construction do not negate Congress’s clear intent. 
 
 
Despite the plain text of section 361, Plaintiffs contend that canons of statutory construction 
require a cramped reading of the statute and regulation.  Pls.’ Mem. 11–16.  But the canons that 
Plaintiffs invoke do not so constrain CDC’s authority.  Plaintiffs rely upon the canon of ejusdem 
generis, the idea 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) (quoting Norfolk & W. Ry. Co. v. Am. Train Dispatchers Ass’n, 499 U.S. 
117, 129 (1991)).  They also invoke the noscitur a sociis canon, which “counsels that a word ‘gathers 
meaning from the words around it.’”  Babbitt v. Sweet Home Ch. of Cmtys. for a Great Or., 515 U.S. 687, 
702 (1995) (quoting Jarecki v. G.D. Searle & Co., 367 U.S. 303, 307 (1961)).  Pointing to these canons, 
Plaintiffs urge the Court to find that the list of measures Congress said the Secretary of HHS “may” 
implement—which the regulation likewise includes—bars CDC from issuing a temporary eviction 
moratorium.  But other federal courts have rejected similar arguments; the structure of the statute 
does not lend itself to this construction; and even if it did, the temporary eviction moratorium is not 
so different from the actions listed in the statute or regulation as to exceed CDC’s authority.   
 
At the outset, it bears emphasis that every federal court to have considered the scope of section 
361 has rejected the contention that the Secretary’s authority is cabined by the list of measures set 
forth in the statute.  For example, in holding that a ban on the sale of baby turtles fell within the scope 
of authority granted by Congress, a court in this District held that “the list does not act as a limitation 
upon the types of regulations that may be enacted under Section 361.”  Indep. Turtle Farmers of La., 703 
F. Supp. 2d at 620.  Likewise, the Brown court found that “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” demonstrate that the grant of authority in the first 

19 
 
sentence of subsection (a) is not limited by the second sentence so as to preclude issuance of the 
Order.  2020 WL 6364310, at *9. 
 
Turning to Plaintiffs’ specific arguments, it is important to note that “canons are not 
mandatory rules,” and should not be used to “produce an interpretation that . . . would conflict with 
the intent embodied in the statute Congress wrote.”  Chickasaw Nation v. United States, 534 U.S. 84, 94 
(2001).  Where congressional intent to empower an agency with wide-ranging authority to regulate for 
a specific purpose is clear, resort to such “guides” is unnecessary.  Id.; accord Brown, 2020 WL 6364310, 
at *9 (“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”). 
 
Moreover, neither the statute nor the regulation utilizes the type of syntactic structure to which 
either ejusdem generis or noscitur a sociis applies.  See Ali, 552 U.S. at 225 (declining to apply ejusdem 
generis where “[t]he structure of the phrase . . . does not lend itself to application of the canon”).  As 
Plaintiffs recognize, the ejusdem generis canon is applicable only where “a general term follows a 
specific one.”  Pls.’ Mem. 5 (quoting Ali, 552 U.S. at 223).  And noscitur a sociis is used to interpret 
“a string of statutory terms” or “items in a list” harmoniously.  Graham Cty. Soil & Water Conservation 
Dist. v. United States ex rel. Wilson, 559 U.S. 280, 289 (2010) (citations omitted).  But Plaintiffs fail to 
acknowledge that the statute at issue begins with a complete sentence containing a broad grant of 
authority to the Secretary of HHS “to make and enforce such regulations as in his judgment are 
necessary to prevent the introduction, transmission, or spread of communicable diseases.”  42 U.S.C. 
§ 264(a).  Only in the next sentence does the statute state that “[f]or the 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 
contaminated as to be sources of dangerous infection to human beings, and other measures, as in his 

20 
 
judgment may be necessary.”6  Id.  Because the general grant of authority to make regulations to 
prevent disease transmission is separate from and precedes the specific list of measures the Secretary 
may provide, canons of construction that guide the interpretation of items in a list do not limit that 
grant of authority.  Moreover, as explained, the statute as a whole makes clear that the authority 
provided in the first sentence of subsection (a) is not limited to measures closely related to those listed 
in the second sentence.  See Ali, 552 U.S. at 226 (looking to “overall statutory context” instead of 
narrowly focusing on canons of construction).  Instead, subsections (b) through (d) focus on 
apprehension, examination, and detention of individuals, meaning that such powers are included 
within the authority granted in the first sentence of subsection (a) despite differing significantly from 
the measures listed in the second sentence.  Accord Brown, 2020 WL 6364310, at *8 (“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.”). 
 
The structure of the regulation similarly precludes application of these canons.  It provides 
that the CDC Director “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 (emphasis added).  Thus, the general phrase “such measures” as are “reasonably necessary” sets 
                                                 
6 The fact that the second sentence of subsection 264(a) places the phrase “as in his judgment may 
be necessary” at the end of the list of possible measures the Secretary may provide for does not alter 
this result.  As explained, that sentence follows the general grant of authority to regulate, which 
requires only that regulation be, in the Secretary’s judgment, “necessary to prevent the introduction, 
transmission, or spread of communicable diseases from foreign countries into the States or 
possessions, or from one State or possession into any other State or possession.”  42 U.S.C. § 264(a).  
This reading is underscored by the fact that, in delegating authority to CDC, the Secretary has 
purposefully chosen phrasing that makes clear that the Director’s ability to take measures to prevent 
the spread of disease according to his public health expertise “includ[es],” but is not limited to, the 
examples of possible measures listed.  42 C.F.R. § 70.2; accord Brown, 2020 WL 6364310, at *9.  
 

21 
 
out the Director’s baseline authority.  See id.  The ensuing list of measures are examples of things that 
fall within this authority, not limits on it.  Therefore, as the Brown court found, “the [ejusdem generis] 
canon is not applicable to § 70.2 because that regulation does not contain the requisite list of specific 
terms followed by a general one,” but “[i]nstead, the specific terms are preceded by the word 
‘including,’ which signifies a more expansive, non-exhaustive list.”7  2020 WL 6364310, at *9; see also 
id. at *10 (declining to apply noscitur a sociis where plaintiffs “failed to identify the existing ambiguous 
word that must be defined in reference to other similar enumerated words”).8   
 
Even if the statute were interpreted in light of the canons of construction Plaintiffs cite, the 
temporary eviction moratorium is not so different from the illustrative actions listed in the statute or 
regulation as to exceed CDC’s authority.  The canon of ejusdem generis focuses on “the common 
attribute” of specific items to aid in the interpretation of a “catchall phrase.”  Ali, 552 U.S. at 225.  
The noscitur a sociis canon likewise looks to surrounding words to inform meaning.  Babbitt, 515 U.S. 
at 702.  Here, the regulation permits CDC to take a number of actions that intrude upon property 
rights, including “inspection,” “fumigation,” and even “destruction,” where the Director deems it 
reasonably necessary to prevent the spread of disease.  42 C.F.R. § 70.2.  The temporary moratorium 
on evictions is a comparable imposition on property in the interest of preventing contagion.  The scale 
of the temporary moratorium is “necessary” to prevent the spread of disease in light of the widespread 
and “historic” threat to public health COVID-19 poses.  See 85 Fed. Reg. at 55292.  Indeed, this action 
                                                 
7 United States v. Kaluza, 780 F.3d 647, 661 (5th Cir. 2015) (cited in Pls.’ Mem. 5), is not to the 
contrary.  The statute at issue there included a list of specific items followed by a catch-all term.  See 
id. at 657.  Given this statutory structure, that court applied the principle of ejusdem generis to 
interpret the general phrase “other person employed on any steamboat or vessel” in light of the 
specific terms preceding it.  See id. at 657, 662-64.  The other cases Plaintiffs cite are distinguishable 
for the same reason:  they analyze general statutory terms that follow a list of specific items.  See Pls.’ 
Mem. 6. 
8 Relatedly, the use of the word “including” renders the canon against superfluity inapplicable, 
and even that canon is “not absolute,” Lamie v. U.S. Trustee, 540 U.S. 526, 536 (2004)—particularly 
where its application would ignore the “plain meaning” of the text. 

22 
 
is entirely consistent with more extensive public health measures taken during this pandemic, such as 
border closures, travel restrictions, business closures, and stay-at-home orders.  See id.; see also, e.g., 
League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x 125, 129 (6th Cir. 2020) (granting 
emergency stay of injunction against state order closing fitness facilities due to COVID-19); Auracle 
Homes, LLC v. Lamont, No. 20-00829, 2020 WL 4558682, at *21 (D. Conn. Aug. 7, 2020) (refusing to 
enjoin state eviction moratorium); TJM 64, Inc. v. Harris, No. 20-02498, 2020 WL 4352756, at *8 (W.D. 
Tenn. July 29, 2020) (refusing to enjoin local restrictions on businesses). 
 
Plaintiffs’ claim that Defendants’ position would result in unbounded federal authority, see Pls.’ 
Mem. 7, is mistaken.  The statute and regulation place clear limits on the agency’s authority, requiring 
that regulation be (1) enacted to “prevent the . . . spread of communicable disease[],” 42 U.S.C. 
§ 264(a); 42 C.F.R. § 70.2; (2) considered “necessary” in the “judgment” of public health experts, 
42 U.S.C. § 264(a); 42 C.F.R. § 70.2; and (3) conditioned on a finding that local health initiatives are 
“insufficient to prevent the spread” of disease “from such State or possession to any other State or 
possession,” 42 C.F.R. § 70.2.  These are not empty requirements, but real constraints reviewable by 
courts under the APA.  See 5 U.S.C. § 706(2); Brown, 2020 WL 6364310, at *12–14.  And these 
limitations have proved meaningful in practice.  Although the PHSA has been law since 1944, HHS 
has rarely used the Section 361 authority.  The fact that CDC has done so here is a direct reflection of 
the severity of the once-in-a-century threat posed by COVID-19.  And the Order’s findings reflect 
the extraordinary circumstances that prompted the CDC Director to determine that—as required by 
the statute and regulation—its issuance was necessary in his judgment to prevent the spread of disease.  
See, e.g., 85 Fed. Reg. at 55292 (explaining that “the mortality associated with COVID–19 during the 
early phase of the outbreak in New York City was comparable to the peak mortality observed during 
the 1918 H1N1 influenza pandemic,” in which “there were approximately 50 million influenza-related 
deaths worldwide, including 675,000 in the United States”).  Plaintiffs’ observation that the risk of 

23 
 
disease transmission is frequent in human society does not, therefore, support their hyperbolic 
assertion that the statue and regulation would permit CDC to regulate all aspects of human interaction.  
See Pls.’ Mem. 7.  Put simply, the Order was not enacted to combat the common cold.  And it is 
supported by extensive findings that demonstrate why it falls within CDC’s broad, but not unlimited, 
authority.  Accord Brown, 2020 WL 6364310, at *12–14. 
 
Plaintiffs’ other arguments—all of which depend on inapposite canons of construction—are 
similarly flawed.  See Pls.’ Mem. 7–11.  For example, Plaintiffs argue that the statute contemplates only 
“conventional disease mitigation measures,” limited to specific places or items that are infected.  See 
id. at 7.  But neither the statute nor regulation so state, and two of the only federal courts to have 
considered the scope of section 361 have rejected similar arguments.  A court in the Eastern District 
of Louisiana held that a ban on the commercial sale of small turtles was permissible under section 361, 
despite the fact that the statute does not specifically address such restrictions on commercial activity 
as a disease-prevention measure and that the ban reached both turtles that were infected and those 
that were not.  Mathews, 427 F. Supp. at 176.  Over thirty years later, the Independent Turtle Farmers 
decision from this District reaffirmed Mathews, rejecting the argument that the turtle ban exceeded an 
agency’s authority under section 361 because it was not one of the “measures” specifically included in 
the statute.  703 F. Supp. 2d at 620–21 (making clear that the agency was permitted “to enact ‘other 
measures, as in his judgment may be necessary,’ in addition to the measures suggested in the list” 
(quoting 42 U.S.C. § 264(a)).  The courts in Mathews and Independent Turtle Farmers likewise both held 
that, contrary to Plaintiffs’ assertion here, see Pls.’ Mem. 9, section 361 allows for regulation of purely 
intrastate activity.  See Mathews, 427 F. Supp. at 176 (“the intrastate ban is not only authorized by the 
law, but, under modern conditions of transportation and commerce is clearly reasonable to prevent 
the interstate spread of disease”); Indep. Turtle Farmers, 703 F. Supp. 2d at 620 (“the Turtle Ban may 
encompass purely intrastate transactions under Section 361”).   

24 
 
 
Finally, Plaintiffs’ contention that the items listed in the statute do not “contemplate 
substantial control over human activity or property” is simply wrong.  Pls.’ Mem. 8.  As explained, 
section 361(a) directly provides for the “destruction of animals or articles”—which are property—and 
subsections (b) through (d) explicitly contemplate the detention of persons.  See 42 U.S.C. § 264(a)–
(d).  And although additional requirements exist for detention of persons, and “destruction” is 
expressly authorized for (although not specifically limited to) “infected or contaminated” property, 
the measure at issue here represents a less intrusive imposition on property rights.  Indeed, the Order 
is a time-limited restriction on one potential remedy for one type of breach of a landlord-tenant 
agreement.  See Brown, 2020 WL 6364310, at *15 (Order “temporarily curtails the enforcement of an 
eviction order”).  It does not permanently deprive any landlord of his or her property, like destruction 
would, and it does not impair any person’s individual freedom of movement.  There is thus no basis 
for Plaintiffs’ claim that heightened findings are required to support the issuance of the Order.  See 
Pls.’ Mem. 12.  But in any event, the Order’s findings make plain the connection between evictions 
and the spread of disease such that a “direct threat to human welfare” is evident.  See id. 
c. The interpretive presumptions to which Plaintiffs point do not apply. 
 
Plaintiffs conclude by arguing that principles of federalism, the constitutional avoidance 
doctrine, and the rule of lenity counsel against a finding that the Order falls within CDC’s authority.  
Pls.’ Mem. 11–16.  None of these interpretive presumptions is properly applied here.  
 
To begin, Plaintiffs’ invocation of the “federalism canon” rests upon the faulty premise that 
the Order alters the balance of power between the states and the federal government.  Not so.  The 
Order simply puts into play the settled constitutional principle that federal law preempts contrary state 
law.  The Supremacy Clause states that federal law “shall be the supreme law of the land; and the 
judges in every state shall be bound thereby, any thing in the Constitution or laws of any State to the 
contrary notwithstanding.”  U.S. Const. art. VI, cl. 2.  The Supreme Court has explained that “[a]s 

25 
 
long as it is acting within the powers granted it under the Constitution, Congress may impose its will 
on the States,” including by “legislat[ing] in areas traditionally regulated by the States.”  Gregory v. 
Ashcroft, 501 U.S. 452, 460 (1991).  Indeed, the federal government has a long history of regulating the 
rental housing market, including, most recently, in the form of a similar temporary eviction 
moratorium enacted as part of the CARES Act.  See Pub. L. No. 116-136, § 4024, 134 Stat. 281 
(Mar. 27, 2020).  Moreover, the statute at issue here contains a clear statement that regulations enacted 
thereunder preempt state law “to the extent that such a provision conflicts with an exercise of Federal 
authority under this section.”  42 U.S.C. § 264(e).  And contrary to Plaintiffs’ assertions, the Order 
does not alter existing state law, but only pauses the ultimate execution of one remedy for breach of 
a rental agreement when certain other conditions are met.  See FAQs at 1 (“The judicial process will 
be carried out according to state and local laws and rules.”).  This interpretive presumption provides 
no basis for an atextually narrow reading of the statute. 
 
Nor is the constitutional avoidance doctrine applicable.  To start, “the canon of constitutional 
avoidance has no application in the absence of statutory ambiguity.”  United States v. Oakland Cannabis 
Buyers’ Co-op., 532 U.S. 483, 494 (2001).  It “comes into play only when, after the application of ordinary 
textual analysis, the statute is found to be susceptible of more than one construction; and the canon 
functions as a means of choosing between them.”  Clark v. Martinez, 543 U.S. 371, 385 (2005).  Plaintiffs fail 
to point to any ambiguity as to which the constitutional avoidance doctrine could prove the tiebreaker.   
 
In any event, none of the constitutional issues to which Plaintiffs point has any merit.9  See 
Pls.’ Mem. 12–15.  First, as explained further below, Congress may delegate legislative power to the 
Executive so long as it provides an “intelligible principle” to guide the agency.  E.g., Mistretta v. United 
                                                 
9 P.J.E.S. v. Wolf, No. 20-2245, 2020 WL 5793305 (D.D.C. Sept. 25, 2020) (cited in Pls.’ Mem. 13), 
involves a different statute, a different regulation, and different claimed constitutional issues focusing 
on the federal government’s ability to remove persons from the country.  See id. at *14.  It is thus 
entirely distinguishable. 

26 
 
States, 488 U.S. 361, 372 (1989).  The statute does so here.  See infra pp. 26-28.  Second, it is well 
established that, under the Commerce Clause, the federal government may regulate activity that has a 
“substantial effect on interstate commerce.”  Gonzales v. Raich, 545 U.S. 1, 16–17 (2005).  And the 
Supreme Court has explicitly held that the commercial activity regulated here—“rental of real 
estate”—is “unquestionably” an activity that substantially affects interstate commerce.  Russell v. United 
States, 471 U.S. 858, 862 (1985).  Third, as explained, the Order does not create “a federal police 
power,” but instead acts as a straightforward application of the Supremacy Clause.  And fourth, as the 
Brown court found, “because [landlords] are still permitted to file breach of contract actions and begin 
eviction proceedings, and are only merely delayed in enforcing eviction orders,” any claim that the 
Order violates a landlord’s access to courts is unlikely to succeed.  2020 WL 6364310, at *14–17; see 
also FAQs at 1 (Order does not “terminate or suspend the operations of any state or local court” or 
“prevent landlords from starting eviction proceedings”). 
 
Finally, the rule of lenity does not apply here.  Even if Plaintiffs were right that the statute 
could theoretically be given a “narrower construction,” or that the statute contained “some 
ambiguity”—and they are not—the rule of lenity is still not appropriate so long as the asserted 
ambiguity could be resolved using traditional tools of statutory interpretation.  Abramski v. United States, 
573 U.S. 169, 188 n.10 (2014).  Plaintiffs have identified no “grievous ambiguity or uncertainty” as to 
what the statute authorizes, see Muscarello v. United States, 524 U.S. 125, 139 (1998), and the rule of lenity 
therefore does not apply. 
2. Section 361(a) Contains an Intelligible Principle and Is Thus a Valid Delegation. 
 
 
Plaintiffs next argue that, if the Order is within CDC’s statutory and regulatory authority, 
section 361(a) contains an unconstitutional delegation of authority.  Pls.’ Mem. 16–18.  But the statute 
easily meets the constitutional requirements for delegation to be valid. 
 
Congress may delegate legislative power so long as it provides an “intelligible principle” to 

27 
 
guide the agency.  See Mistretta, 488 U.S. at 372; see also, e.g., Big Time Vapes, Inc. v. FDA, 963 F.3d 436, 
441 (5th Cir. 2020).  A delegation is “constitutionally sufficient if Congress clearly delineates [1] the 
general policy, [2] the public agency which is to apply it, and [3] the boundaries of this delegated 
authority.”  Mistretta, 488 U.S. at 372–73.  Congressional delegations have been struck down as 
unconstitutional only twice in United States history—both in 1935—and only because “Congress had 
failed to articulate any policy or standard” to confine discretion.  Gundy v. United States, 139 S. Ct. 2116, 
2129 (2019) (plurality opinion) (emphasis added); see also Big Time Vapes, 963 F.3d at 446 (“It bears 
repeating:  The Court has found only two delegations to be unconstitutional.  Ever.  And none in 
more than eighty years.”).   
 
Instead, the Supreme Court has recognized on multiple occasions that the protection of public 
health and safety are intelligible principles sufficient to make a delegation constitutional.  For example, 
the Court found an intelligible principle in a statute permitting the Environmental Protection Agency 
to set primary ambient air quality standards “requisite to protect the public health.”  Whitman v. Am. 
Trucking Ass’ns, 531 U.S. 457, 475–76 (2001).  Similarly, a statute permitting the Attorney General to 
temporarily schedule a drug where he finds that doing so is “necessary to avoid an imminent hazard 
to the public safety” had an intelligible principle.  Touby v. United States, 500 U.S. 160, 166 (1991); see 
also Indus. Union Dep’t, AFL-CIO v. Am. Petroleum Inst., 448 U.S. 607, 646 (1980) (statute empowering 
the Secretary of Labor to determine what constituted a “safe” place of employment); Big Time Vapes, 
963 F.3d at 444–45 (statement of statutory purpose to protect public health and prevent youth 
smoking).  And the Court has, on multiple occasions, “approved delegations to various agencies to 
regulate in the ‘public interest.’”  Gundy, 139 S. Ct. at 2129 (plurality opinion) (citing Nat’l Broadcasting 
Co. v. United States, 319 U.S. 190, 216 (1943), and N.Y. Cent. Secs. Corp. v. United States, 287 U.S. 12, 24 
(1932)).  In contrast, the only two acts ever struck down for violating nondelegation principles either 
“provided literally no guidance for the exercise of discretion” or “conferred authority to regulate the 

28 
 
entire economy on the basis of no more precise a standard than stimulating the economy by assuring 
‘fair competition.’”  Whitman, 531 U.S. at 474; see also Big Time Vapes, 963 F.3d at 446. 
 
The statute at issue here clearly passes muster under this precedent.  The “general policy” 
articulated in subsection (a) is “to prevent the introduction, transmission, or spread of communicable 
diseases from foreign countries into the States or possessions, or from one State or possession into 
any other State or possession.”  42 U.S.C. § 264(a).  This disease-prevention authority is delegated to 
the Secretary of HHS.  Id.  And the requirement that a regulation be “necessary” in the “judgment” 
of the HHS Secretary for the purpose of preventing the spread of disease provides meaningful, 
judicially reviewable boundaries on this grant of authority.  Id. 
 
Plaintiffs’ contentions are not focused on the intelligible-principle standard, but rather rehash 
their argument regarding the alleged breadth of the authority granted to HHS (and CDC).  But that is 
not the standard: “Congress does not violate the Constitution merely because it legislates in broad 
terms, leaving a certain degree of discretion to executive or judicial actors.”  Touby, 500 U.S. at 165.  
To the contrary, “Congress simply cannot do its job absent an ability to delegate power under broad 
general directives.”  Mistretta, 488 U.S. at 372.  And the Supreme Court has noted that it has “almost 
never felt qualified to second-guess Congress regarding the permissible degree of policy judgment that 
can be left to those executing or applying the law.”  Whitman, 531 U.S. at 474–75 (quoting Mistretta, 
488 U.S at 416 (Scalia, J., dissenting)).  Here, Congress has permissibly chosen to delegate broad 
authority, within specified bounds, to public health experts regarding regulations in a fast-moving, 
complex, and technical area.  And, as explained, there is no support for Plaintiffs’ supposition that the 
requirement that regulations be “necessary” to prevent the spread of communicable disease provides 
a regulatory blank check to CDC.  Instead, these boundaries are meaningful, as the fact that the 
agencies have not sought to utilize them except where “necessary”—such as here, in the case of a 
global pandemic—demonstrates. 

29 
 
3. The Order Does Not Violate the APA’s Notice-and-Comment Requirements. 
 
Plaintiffs next argue that the Order is void because CDC failed to comply with the notice-and-
comment requirements that apply to legislative rules under the APA.  See Pls.’ Mem. 22–23.  That 
argument fails because the Order is not a rule to which those requirements apply—and even if it were, 
there was “good cause” to proceed without notice and comment given the urgent circumstances.  See 
5 U.S.C. § 553(b)(B). 
 
First, the APA’s notice-and-comment requirements apply to “rule making,” see 5 U.S.C. § 553, 
with the term “rule” defined to include “statement[s] of general or particular applicability and future 
effect” that are designed to “implement, interpret, or prescribe law or policy,” id. § 551(4)).  But the 
Order is not a rule; it is an “an emergency action taken under the existing authority of 42 CFR 70.2,” 
85 Fed. Reg. at 55296, a regulation that expressly authorizes CDC to take “such measures to prevent 
such spread of the diseases as he/she deems reasonably necessary” to prevent further spread.  42 
C.F.R. § 70.2.  Given that the very purpose of these regulations is to enable the CDC to take swift 
steps to prevent contagion, it cannot be that the actions they authorize are also rules that require yet 
another round of notice and comment before they can take effect.  
 
Second, even if the Order were a rule, notice-and-comment rulemaking is not required “when 
the agency for good cause finds (and incorporates the finding and a brief statement of reasons therefor 
in the rules issued) that notice and public procedure thereon are impracticable, unnecessary, or 
contrary to the public interest.”  5 U.S.C. § 553(b)(B).  This exception excuses notice and comment in 
emergency situations, or where delay could result in serious harm.  See Jifry v. FAA, 370 F.3d 1174, 
1179 (D.C. Cir. 2004).  The agency’s finding here more than meets that standard: as CDC explained, 
a “delay in the effective date of the Order . . . would defeat the purpose of the Order and endanger 
the public health.  Immediate action is necessary.”  85 Fed. Reg. at 55296.  CDC acted quickly given 
the “life-saving importance” of the Order, Council of S. Mountains, Inc. v. Donovan, 653 F.2d 573, 581 

30 
 
(D.C. Cir. 1981), just as the APA permits.  See also, e.g., Vista Health Plan, Inc. v. U.S. Dep’t of Health & 
Human Servs., No. 18-824, 2020 WL 6380206, at *9 (W.D. Tex. Sept. 21, 2020) (exception applies 
where delay would lead to a “significant threat of serious damage to important public interests” 
(quoting Mobil Oil Corp. v. Dep’t of Energy, 610 F.2d 796, 802–03 (Temp. Emer. Ct. App. 1979))). 
 
Plaintiffs properly concede that “COVID-19 represents a serious public health threat.”  Pls.’ 
Mem. 23.  Their only real argument is that CDC could have started a rulemaking earlier, leaving time 
for a full notice-and-comment process.  Yet CDC could not propose an eviction moratorium without 
first determining that such a moratorium was necessary and that state and local measures were 
insufficient.  See 42 C.F.R. § 70.2; see also, e.g., Air Transport Ass’n of Am. v. FAA, 169 F.3d 1, 7 (D.C. 
Cir. 1999) (holding that “critical factual material that is used to support the agency’s position on review 
must have been made public in the proceeding and exposed to refutation” (emphasis omitted)).  And 
Congress and many states implemented similar eviction moratoria early in the pandemic; the 
expiration of these measures directly informed CDC’s determination as to the inadequacy of state 
measures and the necessity of the Order.  See 85 Fed. Reg. at 55294 & n.14 (explaining that the CARES 
Act “helped alleviate the public health consequences of tenant displacement during the COVID-19 
pandemic” but that the effects of its expiration were “expected to manifest” by August 27, 2020); see 
also id. at 55296 & n.36 (indicating that state and local eviction moratoria “have expired and are set to 
expire in many jurisdictions”).  By the time CDC made its determination, it had further determined 
that a delay would impede its critical public health goals.  Over a thousand Americans are now dying 
of COVID-19 every day, and delay would “do real harm.”  U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 
(5th Cir. 1979).  If this case does not satisfy the good cause exception for emergency agency action, it 
is hard to imagine when the exception ever might apply. 
4. The Order Is Not Arbitrary or Capricious. 
 
Plaintiffs are further unlikely to succeed on their claim that the Order is arbitrary and 

31 
 
capricious.  Agency action is arbitrary and capricious only where “the agency has relied on factors 
which Congress has not intended 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.”  Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). 
“The fundamental precept that permits this deferential standard of review is that ‘an agency must 
cogently explain why it has exercised its discretion in a given manner.’”  Sea Robin Pipeline Co. v. 
FERC, 127 F.3d 365, 369 (5th Cir. 1997) (quoting State Farm, 463 U.S. at 48).  Where an agency “is 
making predictions, within its area of special expertise, at the frontiers of science, . . . a reviewing court 
must generally be at its most deferential.”  Balt. Gas & Elec. Co. v. Nat. Res. Def. Council, Inc., 462 U.S. 
87, 103 (1983).  Plaintiffs’ claims cannot overcome that deferential standard. 
 
First, Plaintiffs contend that “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.”  Pls.’ Mem. 19.  Yet the Order explains why it is necessary notwithstanding the various 
actions taken by state and local authorities, see supra pp. 5-7, and it found that “[i]n the absence of State 
and local protections, as many as 30–40 million people in America could be at risk of eviction.”  85 
Fed. Reg. at 55295 & n.17 (citing Emily Benfer, et al., The COVID–19 Eviction Crisis: An Estimated 30–
40 Million People in America are at Risk, available at https://www.aspeninstitute.org/blog-posts/the-
covid-19-eviction-crisis-an-estimated-30-40-million-peoplein-america-are-at-risk).  It is an entirely 
commonsense proposition that a significant number of landlords would exercise their legal rights, as 
they do under ordinary circumstances—and as Plaintiffs here are adamant they wish to do.  And while 
Plaintiffs would require CDC to demonstrate, to a scientific certainty, how all landlords across the 
country will act in the future, on arbitrary-and-capricious review courts should not “insist upon 
obtaining the unobtainable.”  FCC v. Fox Television Stations, 556 U.S. 502, 519 (2009); see also, e.g., Rural 

32 
 
Cellular Ass’n v. FCC, 588 F.3d 1095, 1105 (D.C. Cir. 2009) (the “‘arbitrary and capricious’ standard is 
particularly deferential in matters implicating predictive judgments”). 
 
Second, Plaintiffs contend that the moratorium is unlikely to be effective because it is currently 
set to expire at the end of the year.  See Pls.’ Mem. 19.  For all the reasons given above, CDC disagreed, 
explaining why, in its expert judgment, a temporary moratorium on residential evictions was in fact 
likely to slow the spread of COVID-19.  But in any case, if CDC determines that the Order should be 
extended, it retains the right to extend it.  See 85 Fed. Reg. at 55297 (Order expires December 31, 
2020, “unless extended, modified, or rescinded”).  Plaintiffs provide no authority for the proposition 
that, because the Order may lapse at the end of the year, this Court should strike it down even earlier. 
 
Third, Plaintiffs speculate that, because of the Order, some landlords may hesitate to rent to 
tenants with poor credit history, leaving units vacant instead.  Plaintiffs’ only support for that 
speculation is their own extra-record declaration, which cannot be considered on APA review.  See 
Camp. v. Pitts, 411 U.S. 138, 142 (1973) (per curiam) (in APA case, “the focal point for judicial review 
should be the administrative record already in existence, not some new record made initially in the 
reviewing court”).  But even if there were a basis for Plaintiffs’ speculation, CDC’s goal was to keep 
existing renters from being dislocated and moving into settings where they could spread COVID, not 
simply to reduce nationwide vacancy rates to the lowest possible level.  See supra pp. 5-7. 
C. The Injunction Plaintiffs Seek Is Contrary to the Public Interest. 
 
Finally, the balance of the harms overwhelmingly favors the government, and the injunction 
Plaintiffs seek is contrary to the public interest.  See Nken v. Holder, 556 U.S. 418, 435 (2009) (observing 
that “[t]hese factors merge when the Government is the opposing party”).  CDC issued the Order to 
prevent the spread of an easily transmissible, potentially serious, and sometimes fatal disease that has 
infected more than fourteen million and killed more than 280,000 persons within the United States.  
See 85 Fed. Reg. at 55292; see also CDC COVID Data Tracker.  As the Brown Court held,  

33 
 
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.  
 
2020 WL 6364310, at *22.   
 
Indeed, in balancing the equities and considering the public interest, courts properly decline 
to second-guess the judgments of public health officials.  See, e.g., TJM 64, 2020 WL 4352756, at *8 
(refusing to enjoin local COVID-19 ordinance because such an injunction would “present a risk of 
serious public harm and foster the continued spread [of the] COVID-19 virus”); Auracle Homes, 2020 
WL 4558682, at *21 (“given the nature of this pandemic, the balance of the equities and the public 
interest favor denying a preliminary injunction”); Tigges v. Northam, No. 20-410, 2020 WL 4197610, at 
*10 (E.D. Va. July 21, 2020) (“The public interest in protecting human life—particularly in the face of 
a global and unpredictable pandemic—would not be served by enjoining state officials from taking 
executive action designed to slow the spread of COVID-19.”); Talleywhacker, Inc. v. Cooper, 465 F. Supp. 
3d 523, 543 (E.D.N.C. June 8, 2020) (finding that “the public interest does not weigh in favor of 
injunctive relief” where the government takes “intricate steps to craft reopening policies to balance 
the public health and economic issues associated with the COVID-19 pandemic,” and “neither the 
court nor plaintiffs are better positioned to second-guess those determinations”).   
 
Plaintiffs, on the other hand, are asserting only economic interests.  As demonstrated above, 
these interests are not at risk of irreparable injury.  But even if they were, the public interest in 
protecting health outweighs even serious economic harm.  TJM 64, 2020 WL 4352756, at *7 (denying 
injunction despite finding that plaintiffs would suffer “devastating economic injury” as a result of 
COVID-19 closure orders); see also, e.g., League of Indep. Fitness Facilities, 814 F. App’x at 129 (finding 
that “[t]hough Plaintiffs bear the very real risk of losing their businesses, the Governor’s interest in 
combatting COVID-19 is at least equally significant”); Tigges, 2020 WL 4197610, at *10 (although 

34 
 
plaintiff “suffered significant economic hardship due to the COVID-19 pandemic,” economic loss 
did not outweigh the “urgent need to act to protect . . . health and safety”).10 
 
As the Brown court found in weighing arguments similar to those Plaintiffs advance here, any 
“economic harm pales in comparison to the significant loss of lives that Defendants have 
demonstrated could occur should the Court block the Order.”  2020 WL 6364310, at *23.  And 
although that court found that plaintiffs there were unlikely to succeed on their constitutional claims, 
it observed that “[e]ven if Plaintiffs did show a constitutional violation, the showing would not be 
enough to outweigh the public interest.”  Id.  The balance of the harms and the public interest thus 
tilt decisively in favor of the government. 
II. 
Any Relief Granted Should Be Narrowly Tailored. 
Even if the Court were to disagree with Defendants’ arguments, any relief should be no 
broader than necessary to provide Plaintiffs with relief and therefore should extend only to plaintiffs 
who have standing to sue.  “A plaintiff’s remedy must be tailored to redress the plaintiff’s particular 
injury,” Gill v. Whitford, 138 S. Ct. 1916, 1934 (2018), and “injunctive relief should be no more 
burdensome to the defendant than necessary to provide complete relief to the plaintiffs,” Madsen v. 
Women’s Health Ctr., Inc., 512 U.S. 753, 765 (1994).11 
                                                 
10 The Supreme Court’s recent per curiam order in Roman Catholic Diocese of Brooklyn v. Cuomo, No. 
20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020), is not to the contrary.  In finding that the balance of 
the equities weighed in favor of an injunction against a New York State order that imposed severe 
restrictions on attendance at religious services, the Supreme Court noted that the challenged 
restrictions “strike at the very heart of the First Amendment’s guarantee of religious liberty.”  Id. at 
*3.  This case, in which plaintiffs assert their economic interests, does not involve such claims.  The 
Supreme Court further noted that New York “has not claimed that attendance at the applicants’ 
services has resulted in the spread of the disease,” id., whereas here the public health experts at CDC 
have explained in detail why mass evictions would predictably lead to an increased spread of COVID-
19, but for the Order. 
11 The presence of AAL as a Plaintiff does not change the analysis, as AAL has not established its 
standing.  It apparently seeks to invoke principles of associational standing, under which an association 
may litigate on behalf of its members when “(a) its members would otherwise have standing to sue in 
their own right; (b) the interests it seeks to protect are germane to the organization's purpose; and 

35 
 
Nationwide injunctions, in contrast, “take a toll on the federal court system—preventing legal 
questions from percolating through the federal courts, encouraging forum shopping, and making every 
case a national emergency for the courts and for the Executive Branch.”  Trump. v. Hawaii, 138 S. Ct. 
2392, 2425 (2018) (Thomas, J., concurring); see also, e.g., Holland v. Nat’l Mining Ass’n, 309 F.3d 808, 815 
(D.C. Cir. 2002) (“Allowing one circuit’s statutory interpretation to foreclose . . . review of the question 
in another circuit” would “squelch the circuit disagreements that can lead to Supreme Court review.”).  
The CDC Order at issue here has been challenged in six other districts, underscoring why this Court 
should not attempt to decide its legality for all parties and for all time.  See Brown, No. 20-3702 (N.D. 
Ga.) (preliminary injunction denied Oct. 29, 2020); KBW Inv. Props. v. Azar, No. 20-1852 (S.D. Ohio) 
(federal defendants dismissed by stipulation after TRO denied); Tiger Lily, No. 20-2692 (W.D. Tenn.) 
(preliminary injunction denied Nov. 6, 2020); Terkel v. CDC, No. 20-564 (E.D. Tex.) (preliminary 
injunction motion pending); Skyworks, Ltd. v. CDC, No. 20-2407 (N.D. Ohio) (preliminary injunction 
motion pending); Alabama Association of Realtors v. HHS, No. 20-3377 (D.D.C.) (motion for summary 
judgment pending). 
CONCLUSION 
Plaintiffs’ motion for preliminary injunction should be denied. 
Dated:  December 7, 2020 
Respectfully submitted, 
 
JEFFREY BOSSERT CLARK 
Acting Assistant Attorney General 
 
ERIC BECKENHAUER 
Assistant Director, Federal Programs Branch 
                                                 
(c) neither the claim asserted nor the relief requested requires the participation of individual members 
in the lawsuit.”  Hunt v. Wash. State Apple Advertising Comm’n, 432 U.S. 333, 343 (1977).  To satisfy this 
doctrine, AAL must “identify members who have suffered the requisite harm.”  Summers v. Earth Island 
Inst., 555 U.S. 488, 499 (2009).  Yet AAL provides no identifying information whatsoever about any 
such landlord (other than perhaps Chambless itself, which is litigating on its own behalf).  What little 
information AAL does provide is hearsay.  See, e.g., Esponge Decl. ¶ 6 (describing what declarant has 
“heard from” landlords and management companies). 

36 
 
 
/s/ Steven A. Myers            
STEVEN A. MYERS 
Senior Trial Counsel (NY Bar No. 4823043; 
W.D. La. Account No. 4224101) 
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 
 
 
 
 
 
 
 

 
 
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:  December 7, 2020 
 
 
/s/ Steven A. Myers

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