Plaintiffs' Reply in Support of Motion for Preliminary Injunction — Chambless v. Redfield

Record facts

UNITED STATES DISTRICT COURT · No. 3:20-cv-01455-TAD-KDM · Doc. 32-1 · 2020-12-14 · Docket on CourtListener

Summary

Plaintiffs' reply in support of their motion for preliminary injunction in Chambless Enterprises LLC v. Centers for Disease Control and Prevention, Case No. 3:20-cv-01455-TAD-KDM, filed December 14, 2020 as Document 32-1 in the U.S. District Court for the Western District of Louisiana, Monroe Division. The brief argues the CDC eviction moratorium exceeds the agency's statutory authority under 42 U.S.C. § 264(a), violates the non-delegation doctrine, and is a legislative rule subject to notice and comment that was arbitrary and capricious. It further argues the plaintiffs are suffering irreparable harm and that it is never in the public interest for a federal agency to act unlawfully. A footnote states that Chambless Enterprises has established standing, so the court need not consider whether the Apartment Association of Louisiana has standing. The brief runs 27 pages.

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IN THE UNITED STATES DISTRICT COURT 
FOR THE WESTERN DISTRICT OF LOUISIANA 
MONROE DIVISION 
 
 
CHAMBLESS ENTERPRISES LLC; and 
APARTMENT ASSOCIATION OF 
LOUISIANA, INC., 
 
Plaintiffs, 
 
v. 
 
CENTERS FOR DISEASE CONTROL 
AND PREVENTION; ROBERT R. 
REDFIELD, in his official capacity as 
Director, Centers for Disease Control and 
Prevention; NINA B. WITKOFSKY, in her 
official capacity as Acting Chief of Staff, 
Centers for Disease Control and Prevention; 
ALEX AZAR, in his official capacity as 
Secretary of Health and Human Services; 
DEPARTMENT OF HEALTH AND 
HUMAN SERVICES; WILLIAM P. BARR, 
in his official capacity as Attorney General of 
the United States,  
 
Defendants. 
 
 
 
Case No. 3:20-cv-01455-TAD-KLH 
 
 
 
JUDGE TERRY A. DOUGHTY 
 
MAGISTRATE JUDGE KAREN L. 
HAYES 
 
REPLY IN SUPPORT OF  
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS 
TABLE OF AUTHORITIES .......................................................................................................... ii 
INTRODUCTION .......................................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
I. 
THE CDC EVICTION MORATORIUM IS UNLAWFUL ............................................... 2 
A. 
The CDC Order Exceeds Statutory Authority .............................................................. 2 
1. 
Longstanding Canons of Construction Limit CDC’s Discretion .............................. 2 
2.  
The Federalism and Constitutional Avoidance Canons Call for Rejection  
of CDC’s Sweeping Assertion of Power .................................................................. 6 
a. 
The Statute Does Not Contain a Clear Statement That Congress Intended To 
Encroach Upon State Prerogatives ........................................................................ 6 
b. 
This Court Should Employ Constitutional Avoidance .......................................... 7 
B. 
The Government’s Interpretation Violates the Non-Delegation Doctrine .................... 7 
C.  
The CDC Order Is a Legislative Rule Subject to Notice and Comment .................... 10 
D.  
The CDC Order Was Arbitrary and Capricious .......................................................... 12 
II.   PLAINTIFFS ARE SUFFERING IRREPARABLE HARM ........................................... 14 
A. 
Plaintiffs Are Suffering Constitutional Injuries ...................................................... 14 
B.  
There Is No Prospect of Collecting Debts From All Insolvent Individuals ............ 17 
C. 
The CDC Abrogated Plaintiffs’ Right To Control Their Property ......................... 18 
III.   IT IS NEVER IN THE PUBLIC INTEREST FOR A FEDERAL AGENCY  
TO ACT LAWLESSLY ................................................................................................... 20 
CONCLUSION ............................................................................................................................. 20 
CERTIFICATE OF SERVICE ..................................................................................................... 21 
 
 
 
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ii 
 
TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Ali v. Fed. Bureau of Prisons, 552 U.S. 214 (2008) ........................................................................4 
Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 
559 F.3d 1046 (9th Cir. 2009) .................................................................................................16 
Awad v. Ziriax, 670 F.3d 1111 (10th Cir. 2012) ............................................................................20 
Brown v. Azar, 
No. 1:20-CV-03702-JPB, 2020 WL 6364310 (N.D. Ga. Oct. 29, 2020) ......................5, 18–19 
Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................1 
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 
511 F.3d 535 (6th Cir. 2007) ...................................................................................................17 
Chevron, U.S.A., Inc. v. Nat. Resources Defense Council, Inc., 
467 U.S. 837 (1984) ...................................................................................................................6 
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................10 
Circuit City Stores, Inc. v. Adams, 
532 U.S. 105 (2001) ...................................................................................................................6 
Clark v. Martinez, 543 U.S. 371 (2005) ..........................................................................................7 
Deckert v. Indep. Shares Corp., 
311 U.S. 282 (1940) .................................................................................................................18 
Dennis Melancon, Inc. v. City of New Orleans, 
703 F.3d 262 (5th Cir. 2012) ...................................................................................................18 
Dep’t of Homeland Sec. v. Regents of the Univ. of California, 
140 S. Ct. 1891 (2020) .............................................................................................................13 
E. Tennessee Nat. Gas Co. v. Sage, 
361 F.3d 808 (4th Cir. 2004) ...................................................................................................19 
Elmsford Apt. Assocs., LLC v. Cuomo, 
No. 20-CV-4062, 2020 WL 3498456 (S.D.N.Y. June 29, 2020) ............................................17 
Elrod v. Burns, 427 U.S. 347 (1976) .............................................................................................15 
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 
561 U.S. 477 (2010) .................................................................................................................16 
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ........................................................................20 
Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................................................................................6 
Home Bldg. & Loan Ass’n v. Blaisdell, 
290 U.S. 398 (1934) .................................................................................................................19 
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Hoxworth v. Blinder, Robinson & Co., 
903 F.2d 186 (3d Cir. 1990).....................................................................................................17 
Independent Turtle Farmers of Louisiana, Inc. v. United States, 
703 F. Supp. 2d 604 (W.D. La. 2010) ....................................................................................3, 5 
Industrial Union Department, AFL-CIO v. American Petroleum Institute, 
448 U.S. 607 (1980) .............................................................................................................9–10 
INS v. Chadha, 462 U.S. 919 (1983) .............................................................................................20 
Iowa League of Cities v. E.P.A., 711 F.3d 844 (8th Cir. 2013) .....................................................10 
Jackson Women’s Health Org. v. Currier, 760 F.3d 448 (5th Cir. 2014) .....................................20 
Janvey v. Alguire, 647 F.3d 585 (5th Cir. 2011)  ...........................................................................17 
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .................................................................................5–6, 12 
Louisiana Pub. Serv. Comm’n v. F.C.C., 
476 U.S. 355 (1986) .................................................................................................................15 
Luminant Generation Co. v. U.S. E.P.A., 675 F.3d 917 (5th Cir. 2012) .......................................14 
Marshall v. United States, 414 U.S. 417 (1974) ..............................................................................3 
Melendres v. Arpaio, 
695 F.3d 990 (9th Cir. 2012) .............................................................................................15–16 
Minard Run Oil Co. v. U.S. Forest Serv., 
670 F.3d 236 (3d Cir. 2011)...............................................................................................18–19 
Mississippi Power & Light Co. v. United Gas Pipe Line Co.,  
760 F.2d 618 (5th Cir. 1985) .............................................................................................15, 17 
Morales v. Trans World Airlines, Inc., 
504 U.S. 374 (1992) .................................................................................................................16 
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29 (1983) .............................................................................................................13–14 
New York Times v. Sullivan, 376 U.S. 254 (1964) .........................................................................16 
PDR Network LLC v. Carlton & Harris Chiropractic, Inc., 
139 S. Ct. 2051 (2019) .......................................................................................................10–11 
Perez v. Mortg. Bankers Ass’n, 
575 U.S. 92 (2015) ...................................................................................................................10 
Performance Unlimited, Inc. v. Questar Publishers, Inc., 
52 F.3d 1373 (6th Cir. 1995) ...................................................................................................17 
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 
822 F.2d 1390 (6th Cir. 1987) ...........................................................................................15–16 
Professionals & Patients for Customized Care v. Shalala,  
56 F.3d 592 (5th Cir. 1995) .....................................................................................................11 
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Roda Drilling Co. v. Siegal, 
552 F.3d 1203 (10th Cir. 2009) ...............................................................................................19 
Roland Mach. Co. v. Dresser Indus., Inc., 
749 F.2d 380 (7th Cir. 1984) ...................................................................................................17 
Roman Catholic Diocese of Brooklyn v. Cuomo, 
No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020) .........................................................1, 19 
RSR Corp. v. E.P.A., 588 F. Supp. 1251 (N.D. Tex. 1984) ...........................................................13 
Springtree Apartments, ALPIC v. Livingston Parish Council,  
207 F. Supp. 2d 507 (M.D. La. 2001) ......................................................................................16 
Sw. Elec. Power Co. v. United States Envtl. Prot. Agency,  
920 F.3d 999 (5th Cir. 2019) ...................................................................................................14 
Teradyne, Inc. v. Mostek Corp., 797 F.2d 43 (1st Cir. 1986) ........................................................17 
Texas v. United States, 201 F. Supp. 3d 810 (N.D. Tex. 2016) .....................................................11 
Texas v. United States, 787 F.3d 733 (5th Cir. 2015) ....................................................................11 
Touby v. United States, 500 U.S. 160 (1991)...................................................................................9 
Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645 (2017).............................................1 
United States v. Hastie, 854 F.3d 1298 (11th Cir. 2017) .................................................................5 
United States v. Johnson, 632 F.3d 912 (5th Cir. 2011) ................................................................12 
United States v. Lopez, 514 U.S. 549 (1995) ...................................................................................7 
U.S. Steel Corp. v. EPA, 595 F.2d 207 (5th Cir. 1979) .................................................................12 
Utility Air Regulatory Grp. v. EPA, 
573 U.S. 302 (2014) ...................................................................................................................2 
Valley v. Rapides Parish Sch. Bd., 
118 F.3d 1047 (5th Cir. 1997) .................................................................................................15 
Whitman v. Am. Trucking Ass’ns, Inc., 
531 U.S. 457 (2001) .............................................................................................................8–10 
Winter v. Nat. Res. Def. Council, Inc., 
555 U.S. 7 (2008) .....................................................................................................................15 
Yates v. United States, 574 U.S. 528 (2015) ....................................................................................6 
Statutes 
42 U.S.C. § 264(a) ................................................................................................................. passim 
 
§ 264(b) ......................................................................................................................................3 
Constitution 
U.S. Const. art. I, § 1......................................................................................................................12 
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Regulation 
42 C.F.R. § 70.2 .....................................................................................................................3–4, 11 
 
Other Authorities 
85 Fed. Reg. 55,292-01 (Sept. 4, 2020) ...................................................................................12, 14 
Br. Amici Curiae, National Apartment Association, et al.,  
Skyworks, Ltd. v. Centers for Disease Control and Prevention,  
5:20-cv-02407-JRA (N.D. Oh. Nov. 17, 2020) .......................................................................13 
Restatement (Second) of Contracts (1981) ....................................................................................17 
Wright & Miller, Fed. Pract. & Proc. (3d ed. 2018) .....................................................................15 
 
 
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INTRODUCTION 
The Center for Disease Control and Prevention (CDC) has assumed the power to 
criminalize eviction proceedings throughout the nation. It asserts this power under a statute that 
authorizes the Department of Health and Human Services (HHS) and the CDC to take what 
Congress referred to as “ordinary disease control measures.” The Government admits that the 
implication of the CDC’s extraordinary assumption of power is that the CDC may control any 
human activity that could conceivably contribute to the spread of disease in America. And the 
CDC may exercise such authority, according to the Government, through the mere stroke of a 
bureaucratic pen, without even following the Administrative Procedure Act’s (APA’s) notice-and-
comment rulemaking procedures.  
This is not how lawmaking is supposed to be done under a Constitution that limits the 
power of the Federal Government and assigns to Congress the power to make law and to the 
executive branch the power only to enforce it. It is not even how rulemaking is supposed to be 
done under the APA, which was designed to ensure that administrative agencies, in wielding their 
vast power, at least give notice of the rules Americans must follow in advance and allow them an 
opportunity for input. “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” 
Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *3 (U.S. 
Nov. 25, 2020). This Court should enjoin the CDC’s breathtaking exercise of authority it does not 
possess.1 
 
1 Plaintiff Chambless Enterprises has established standing to challenge the CDC Order. 
Accordingly, this Court need not consider whether the Apartment Association of Louisiana has 
standing. Town of Chester, N.Y. v. Laroe Estates, Inc., 137 S. Ct. 1645, 1651 (2017) (affirming 
that the requirement of Article III is satisfied so long as one plaintiff has standing). 
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ARGUMENT 
I. THE CDC EVICTION MORATORIUM IS UNLAWFUL 
A. The CDC Order Exceeds Statutory Authority 
1. 
Longstanding Canons of Construction Limit CDC’s Discretion  
The CDC lacks authority to impose regulations that involve measures unrelated to 
“inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction of animals or 
articles.” 42 U.S.C. § 264(a). The Order does not resemble the actions in the enumerated list. 
The Government emphasizes the sentence before this list, which authorizes the agency “to 
make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, 
transmission, or spread of communicable diseases” into or among the states. 42 U.S.C. § 264(a); 
Defendants’ Mem. in Opp. to Pls.’ Motion for Prelim. Inj. at 15, ECF No. 20 (“Opp. Br.”). 
According to the Government, the term “judgment” exhibits deference to the agency. But that first 
sentence must be read in context. See Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014). 
The limits imposed on the agency in the second sentence relate back to the grant of power in the 
first sentence. The first sentence deals with the regulations that the agency can promulgate, while 
the second sentence deals with the measures that the agency may take in furtherance of those 
regulations. The types of measures that can be taken inform the types of regulations the agency 
may pursue. If, as the Government suggests, the enumerated list has no bearing on regulations that 
the CDC can impose, then the list is meaningless. The CDC Order is a prime example. How will 
fumigation, disinfection, sanitation, or destruction of infected animals help the CDC further the 
eviction moratorium? If the sentence regarding measures of enforcement is to have any meaning, 
it must relate back to the types of regulations that would require those kinds of measures as an 
effective means of administering the regulation. 
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Moreover, if at all lawful, the agency’s Order must stem from the authority granted from 
the second sentence of Section 264(a) because the Government insists that the Order is not a 
regulation, but rather a measure taken to further regulation 42 C.F.R. § 70.2. See Opp. Br. at 29. 
Thus, the CDC Order is subject to the more limited authority granted in the second sentence of 
Section 264, not the first sentence authorizing the agency to adopt regulations. This is one among 
several reasons why Independent Turtle Farmers of Louisiana, Inc. v. United States, 703 F. Supp. 
2d 604 (W.D. La. 2010), which the Government relies on, is inapposite; that case was a legal 
challenge to a regulation promulgated on the authority of the first sentence of 42 U.S.C. § 264(a), 
not a measure taken under the second sentence. 
The agency also argues that subsection (a) of 42 U.S.C. § 264 must be read broadly because 
subsection (b) contemplates detention of individuals as a permissible measure, which is not akin 
to the enumerated list. But it is not subsection (a) that authorizes detention—that is what subsection 
(b) does. Subsection (b) states that the statute does not allow for detention except under 
circumstances established in subsection (b). 42 U.S.C. § 264(b). Thus, subsection (b) creates the 
power to detain, and the phrasing makes clear that the preceding subsection contemplates no such 
power.  
The Government also asks this Court to relax its interpretive rigor because this statute 
touches upon an area “fraught with medical and scientific uncertainties.” Opp. Br. at 15 (quoting 
Marshall v. United States, 414 U.S. 417, 427 (1974)). The case the Government cites for this 
proposition, Marshall v. United States, did not instruct courts to read technical statutes broadly. 
Rather, the case stated the age-old rule that judges should not second-guess the reasonableness of 
legislative line-drawing. Id. at 427–28. 
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The Government argues that the ejusdem generis canon does not apply. The Government 
points out that, in 42 C.F.R. § 70.2, the enumerated list comes after the catch-all phrase, arguing 
that the canon only applies where the catch-all phrase comes after the enumerated list. Opp. Br. at 
20. But the statute’s structure is the reverse: the catch-all follows the enumerated list, which is 
precisely the circumstance where ejusdem generis applies. See Ali v. Fed. Bureau of Prisons, 552 
U.S. 214, 223 (2008). The Government likewise argues that the word “including” renders the 
surplusage canon obsolete, Opp. Br. at 20, but only the regulation uses that word, not the statute. 
To the extent that the regulation avoids ejusdem generis by its grammatical structure, it exceeds 
the scope of authority granted by the statute, and the Government has never asked this Court to 
defer to the regulation’s interpretation of the statute. 
The Government then argues that, even if ejusdem generis applies, the eviction moratorium 
is “not so different” from the enumerated list. Opp. Br. at 21. The Government artificially narrows 
the common attributes in the list, focusing on the notion that each action involves some property 
intrusion. Id. But the Government fails to acknowledge that the statute imposes additional limits 
where the restrictions on property are heightened. Thus, for instance, the statute only allows for 
outright destruction of property if the agency makes an express finding that the particular property 
at issue poses a substantial health risk. See 42 U.S.C. § 264(a). These requirements are not imposed 
for lesser intrusions, such as fumigation. The CDC Order does not make any particularized finding 
for the individual properties subject to the Order. 
Further, the Government ignores other common attributes in the enumerated list, such as 
conventional methods of disease prevention and localized actions that take place at specific sites 
and directly mitigate spread of disease. The list, moreover, does not involve actions that curtail or 
control human behavior or that bar people from exercising rights granted by their respective states. 
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The CDC Order differs on each of these common attributes: it is unconventional (indeed, 
unprecedented), it is a nationwide rather than localized effort, it does not just act on a particular 
piece of property but limits human action by preventing landlords from going through the eviction 
process, and it only strikes at disease indirectly, by potentially preventing homelessness, which 
could potentially lead to more congregating, which could potentially lead to transmission, which 
could potentially cross a border. The CDC Order is much less akin to the enumerated list than the 
agency regulation in Independent Turtle Farmers, 703 F. Supp. 2d 604. There, the regulation 
banning sale of pet turtles due to salmonella risks did not abrogate a preexisting statutory right, 
did not thwart rights in real property, did not meddle with a massive swath of American economic 
life, and was closely related to destruction of infected animals. 
The Government also points to a recent federal district court ruling rejecting statutory 
arguments similar to those raised by Plaintiffs here. See Brown v. Azar, No. 1:20-CV-03702-JPB, 
2020 WL 6364310 (N.D. Ga. Oct. 29, 2020). But the district court made several key interpretive 
errors. First, the court made the same error mentioned above—assuming that subsection (a) 
authorizes detention when it does not. Id. at *8. Second, the court dismissed the enumerated list, 
citing a case that states “[t]he word include does not ordinarily introduce an exhaustive list.” Id. 
(quoting United States v. Hastie, 854 F.3d 1298, 1304 (11th Cir. 2017)). But no one is arguing that 
the enumerated list is exhaustive, only that it guides the meaning of “other measures.” Moreover, 
the word “include” does not appear in the statute.  
Finally, the district court erred in holding that ejusdem generis and similar canons do not 
apply because the statute is not ambiguous. Id. at *9. Yet a court can only conclude a statute is 
ambiguous after employing the traditional canons of construction. See Kisor v. Wilkie, 139 S. Ct. 
2400, 2414 (2019) (noting that, for both rules and statutes, ambiguity only arises “after a court has 
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resorted to all the standard tools of interpretation”) (emphasis added); id. at 2415 (“[B]efore 
concluding that a rule is genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of 
construction.”); Chevron, U.S.A., Inc. v. Nat. Resources Defense Council, Inc., 467 U.S. 837, 843 
n.9 (1984) (a statute is not ambiguous “[i]f a court, employing traditional tools of statutory 
construction, ascertains that Congress had an intention on the precise question at issue”). See also, 
e.g., Yates v. United States, 574 U.S. 528, 537 (2015) (applying ejusdem generis before 
determining whether the text was ambiguous); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 
114–20 (2001) (same). Hence, the court erred in declining to apply these canons. 
2.  
The Federalism and Constitutional Avoidance Canons Call for Rejection of 
CDC’s Sweeping Assertion of Power 
a. The Statute Does Not Contain a Clear Statement That Congress Intended To 
Encroach Upon State Prerogatives 
Federal courts presume that Congress did not intend to step into traditional areas of state 
concern unless Congress says so in unmistakably clear terms. See Gregory v. Ashcroft, 501 U.S. 
452, 460 (1991). Here, the statute states that the CDC may prevent disease through conventional 
disease control measures. There is not a whisper about congressional intent to exercise control 
over state court proceedings or state landlord-tenant law. 
The Government points out that federal law preempts state law, which has no bearing on 
the federalism canon. Indeed, federal preemption is one reason courts hesitate to interpret uncertain 
language as overriding state prerogatives. The Government also points out that the Federal 
Government has often regulated the rental industry in the past. Once again, this point has no 
bearing on whether this statute presents a clear intent to do so, except to the extent that it shows 
that Congress knows how to legislate in the rental industry, only reaffirming that Congress can be 
clear about its intentions. 
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The Government next argues that a federal order barring landlords from accessing state 
court proceedings does not actually alter the federal-state balance. But there is no question that 
Plaintiffs in this matter, as well as landlords across the country, would be able to avail themselves 
of state statutory remedies but for the CDC Order. Moreover, the Government implies that it has 
authority to engage in the police power actions that states have taken during the pandemic, such 
as stay-at-home orders and business closures. See Opp. Br. at 22. The Government cannot claim 
to arrogate to itself a federal police power while disclaiming any intent to step on state authority. 
See United States v. Lopez, 514 U.S. 549, 567–68 (1995). 
b. This Court Should Employ Constitutional Avoidance 
The Government urges this Court to ignore the constitutional avoidance canon because the 
statute is not ambiguous. But the canon applies so long as there is more than one plausible reading 
of the statute. Clark v. Martinez, 543 U.S. 371, 380–81 (2005). Plaintiffs need not rehash the 
interpretive analysis to demonstrate that the statute has a plausible reading that avoids 
constitutional issues.  
 Non-delegation concerns are discussed below. The Government dismisses Commerce 
Clause concerns by misconstruing what the Order regulates. The Order only regulates a landlord’s 
access to a state court proceeding, not the general commercial activity of renting property. It bears 
repeating that the Government frankly admits that it believes the statute gives it the power to adopt 
any measures that states have taken pursuant to their police powers, Opp. Br. at 22, indicating that 
the Government’s view of the statute gives it the very federal police power that the Supreme Court 
has consistently rejected as within the ambit of the Commerce Clause. See Lopez, 514 U.S. at 567. 
B.  
The Government’s Interpretation Violates the Non-Delegation Doctrine 
The Government contends that the statute grants it the sweeping authority to ban evictions 
across the nation. The Government points to three supposed intelligible principles: (1) the 
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requirement that CDC action be geared toward preventing communicable disease; (2) that such 
action be judged necessary by the CDC; and (3) that the CDC condition its actions on a finding 
that state actions are insufficient. Opp. Br. at 28. 
The statute’s authorization for the CDC to prevent spread of disease is not an intelligible 
principle. This only establishes the subject matter area in which the agency can regulate. As 
Plaintiffs explained in their memorandum, any human interaction involves a risk that an illness 
might spread. Hence, aside perhaps from long-distance communication, all human interactions are 
within the scope of this mandate. 
The requirement that such action be deemed “necessary” based on the agency’s “judgment” 
is likewise no intelligible principle. The use of the word “judgment” is telling—the determination 
of necessity sits entirely within the agency’s discretion, and it may consider whatever factors and 
weigh whatever considerations it deems relevant to that determination. No statutory criteria exist 
to guide the agency’s necessity determination. 
The Government also points to the requirement in the regulation that the CDC may only 
act where it deems state action to be insufficient. But limits imposed by regulation are irrelevant 
to the non-delegation analysis, which focuses on what the legislature authorized the agency to do, 
not what limits the agency voluntarily imposed on itself: “Whether the statute delegates legislative 
power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the 
answer.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 473 (2001). 
The Government relies on cases that only demonstrate the distance between the statute as 
understood by the CDC and the statutes upheld in the cited cases. In Whitman, for instance, the 
Supreme Court upheld EPA authority to set national ambient air quality standards. But the 
agency’s determination of what was “requisite” for air quality standards had to be based on 
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statutory air quality criteria reflecting the latest scientific knowledge. Id. No similar statutory 
criteria must be considered in determining what is “necessary” under 42 U.S.C. § 264(a).  
Moreover, Whitman recognized that “the degree of agency discretion that is acceptable 
varies according to the scope of the power congressionally conferred.” Id. Setting air quality 
standards involved “judgments of degree” somewhere along a single public safety continuum. Id. 
at 475. By contrast, the CDC claims a broad, roving authority to alter the very substance of 
American life and restrict any activity that could risk disease transmission, including through stay-
at-home orders and business closures. Opp. Br. at 22. 
The other cases relied on by the Government involve statutes that, like the statute in 
Whitman, impose statutory criteria on the agency’s determination of necessity and involve a much 
narrower scope of power. For example, in Touby v. United States, 500 U.S. 160, 166 (1991), the 
Attorney General had authority to temporarily mark drugs as controlled substances if he found it 
“necessary to avoid an imminent hazard to the public safety.” But in making that determination, 
the Attorney General had to consider three factors: pattern of abuse, severity of abuse, and risk to 
public health. Id. These statutory factors limited the Attorney General’s discretion, and his 
authority was relatively narrow in scope: he could only temporarily insert specific substances into 
a preexisting statutory regime. No similar temporal or subject-matter limit exists with respect to 
the CDC’s claimed authority. 
Again, in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 
U.S. 607 (1980), the Occupational Safety and Health Act gave OSHA power to set standards for 
toxic materials, but constrained that discretion by imposing a feasibility standard, a cost-benefit 
analysis, a required finding of “significant risk,” and a “best available evidence” standard. Id. at 
644–45. Indeed, the Court in Industrial Union rejected a broad reading of the statute that would 
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not require the agency to quantify the public safety risk because such a reading would pose a 
serious non-delegation problem. Id. at 646. The Court refused to give the agency “the 
unprecedented power over American industry that would result from the government’s view.” Id. 
at 645. This Court should likewise reject the Government’s view that would give the CDC not only 
unprecedented power over American industry, but power even to dictate American social life with 
as much discretion as any state legislature. 
The statute at issue here, as understood by the Government, imposes none of the constraints 
that the Court considered important in the cited cases. There is no feasibility standard, no 
“significant risk” requirement, no list of statutory criteria to consider, no cost-benefit analysis, no 
“best available science” standard. And the scope of the power CDC seeks is broader than the 
statutes in the above cases. One could paraphrase Whitman as follows: “[42 U.S.C. § 264(a)] has 
conferred authority to regulate the entire economy on the basis of no more precise a standard than 
[preventing transmission of disease that the agency deems ‘necessary’ based on its own 
unencumbered ‘judgment’].” Whitman, 531 U.S. at 474. 
C.  The CDC Order Is a Legislative Rule Subject to Notice-and-Comment  
The APA’s notice-and-comment requirement serves the vital functions of accountability 
and transparency.2 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). It ensures that those 
affected by agency actions will have a meaningful opportunity to participate in the process. See 
Chrysler Corp. v. Brown, 441 U.S. 281, 302–03 (1979). The CDC’s eviction moratorium 
unquestionably fits the definition of a legislative rule, as it is a statement of general applicability 
that carries the force of law and affects the rights of potentially millions of Americans. See PDR 
 
2 It bears emphasis that the injury suffered with a notice-and-comment violation is in the regulatory 
burden of complying with an improperly promulgated rule. See  Iowa League of Cities v. E.P.A., 
711 F.3d 844, 870–71 (8th Cir. 2013) (recognizing the compliance costs as the relevant injury). 
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Network LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2055 (2019). And it does 
not fit the narrower definition of an “order” because it is not an individualized directive that merely 
applies a general rule. See id. (recognizing that an FCC pronouncement interpreting the Telephone 
Consumer Protection Act constitutes a rule for the purposes of the APA, even as it was deemed an 
order for the purposes of the Hobbs Act). 
The Government’s only response is that it would be odd if the CDC had to follow notice-
and-comment rulemaking every time it issued an order under Section 70.2. Opp. Br. at 31. Indeed, 
that would be odd if the subject were fumigating railcars or banning infected turtles or engaging 
in some other action clearly contemplated by Section 264(a) or 70.2. But it is far from odd to 
expect an agency to follow notice-and-comment rulemaking when it is altering the rights of 
millions and criminalizing a legal process available in every state. The Government’s point only 
emphasizes that Congress could not have intended to give HHS or CDC the sweeping authority 
they have claimed. When Congress passed an eviction moratorium in the CARES Act, it did so in 
the light of day through the normal lawmaking process. If the CDC can accomplish the same thing 
behind closed doors with a bureaucratic stroke of the pen, then the APA’s notice-and-comment 
procedures (to say nothing of Congress’s lawmaking authority) is a dead letter. See Texas v. United 
States, 201 F. Supp. 3d 810, 829 (N.D. Tex. 2016) (emphasizing that the purpose of the APA's 
notice-and-comment requirement is to encourage more thoughtful rulemaking). 
The existence of the CARES Act eviction moratorium also serves as a rejoinder to the 
Government’s claim that following notice-and-comment rulemaking would have been 
impracticable. Opp. Br. at 29–31. Cf. Texas v. United States, 787 F.3d 733, 762 (5th Cir. 2015) 
(stressing that “APA’s notice-and-comment exemptions must be narrowly construed”) (quoting 
Professionals & Patients for Customized Care v. Shalala, 56 F.3d 592, 595 (5th Cir. 1995)). 
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Congress knew early in the pandemic that evictions were likely and managed to adopt a 
moratorium on March 27, 2020, that was set to expire in July. The CDC knew all this, yet it claims 
that it could only act on an “emergency” basis in late August. This is not a credible reason to ignore 
notice and comment. See United States v. Johnson, 632 F.3d 912, 929 (5th Cir. 2011) (holding that 
there was not good cause for bypassing notice and comment where an agency waited seven months 
from the triggering event). See also U.S. Steel Corp. v. EPA, 595 F.2d 207, 214 (5th Cir. 1979) 
(stressing the good cause exception should not be used “to circumvent the notice and comment 
requirements…”). Nor can the expiration of the CARES Act moratorium constitute an 
“emergency.” That was a legislative choice, exclusively within Congress’ power to make. See U.S. 
Const. art. I, § 1. If legislative choices were an excuse to ignore notice-and-comment requirements, 
agencies could concoct emergencies out of the expiration of virtually any law.  
D.  The CDC Order Was Arbitrary and Capricious  
By its own account, the CDC rushed to issue the eviction moratorium. Opp. Br. at 30. In 
its haste, the CDC neglected to engage in the sort of thorough and deliberative analysis that we 
should expect for a “major rule.” 85 Fed. Reg. 55,292-01, 55,296 (Sept. 4, 2020). For that matter, 
the Government acknowledges that the CDC’s Order is predicated upon speculative assumptions. 
Opp. Br. at 31 (claiming that deference is owed when an agency makes predictions). But no 
deference is owed to unsupported factual assertions, especially where an agency lacks special 
expertise. Cf. Kisor, 139 S. Ct. at 2417 (deference is inappropriate if the agency lacks special 
expertise). Here the Government stresses that the CDC relied on a finding that “30-40 million 
people in America could be at risk of eviction.” 85 Fed. Reg. at 55,295 & n.17 (emphasis added). 
Granted, some nonpaying tenants would face eviction in the absence of a nationwide moratorium; 
however, the Government has failed to identify anything in the record demonstrating that mass 
evictions were likely. See Declaration of Erin Babich Runge, Exhibit A (observing that there has 
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not been a dramatic uptick in eviction filings). The Government responds that the CDC could not 
be expected to “obtain[] the unobtainable.” Opp. Br. at 31. Yet if the CDC had proceeded in a 
reasoned and deliberative rulemaking process, it would have engaged in comparative analysis 
between states with eviction moratoria and those without. In failing to do so, the CDC “failed to 
consider an important aspect of the problem . . . .” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State 
Farm Mut. Auto, 463 U.S. 29, 43 (1983); see also Dep’t of Homeland Sec. v. Regents of the Univ. 
of California, 140 S. Ct. 1891, 1912, (2020) (Attorney General failed to sufficiently explain a 
change in policy). 
Further, the Government argues that there was no need to consider whether the eviction 
moratorium might make it more difficult for individuals with poor credit to secure housing 
because—while the CDC’s public health goal was to enable people to shelter in place—it sought 
only to “keep existing renters from being dislocated and moving. . . .” Opp. Br. at 32. If so, then 
the CDC “failed to consider an important aspect of the problem,” and the Order is therefore 
arbitrary and capricious. RSR Corp. v. E.P.A., 588 F. Supp. 1251, 1255 (N.D. Tex. 1984) (agency 
failed to show that its decision was based on consideration and examination of all relevant factors 
and alternatives) (citing Motor Vehicle Mfrs. Ass'n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 
463 U.S. 29, 43 (1983)). Whether because a lease expires or because an individual seeks to relocate 
to pursue a new job, people must inevitably seek out new housing—even during a pandemic. What 
is more, had the CDC provided a comment period, it would have learned that an eviction 
moratorium would prompt some landlords to exit the rental market entirely, therein “limit[ing] the 
availability of rental units for everyone.” See Br. Amici Curiae, National Apartment Association, 
et al. at 12–14, Skyworks, Ltd. v. Centers for Disease Control and Prevention, No. 5:20-cv-02407-
JRA (N.D. Ohio Nov. 17, 2020), ECF No. 20.  
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Lastly, the Government argues that it is within the discretion of the CDC’s “expert 
judgment” to craft an eviction moratorium in whatever manner the agency deems fit. Opp. Br. at 
32. But whatever latitude the CDC might have, the Government acknowledges that the APA 
forbids decisions that “run[] counter to the evidence before the agency . . . .” Luminant Generation 
Co., LLC v. U.S. E.P.A., 675 F.3d 917, 925 (5th Cir. 2012) (quoting language from Motor Vehicle 
Mfrs. Ass’n of U.S., Inc., 463 U.S. at 43); see Sw. Elec. Power Co. v. United States Envtl. Prot. 
Agency, 920 F.3d 999, 1016 (5th Cir. 2019) (finding “critical tension” between EPA’s findings 
and its ultimate decision). Here the Government has failed to reconcile the facts that the CDC 
relied upon with its decision to issue the temporary halt in evictions. The Order contemplated that 
a moratorium was necessary to prevent evictions through the colder months and during the flu 
season. 85 Fed. Reg. at 55,296. Yet, without explanation, the CDC set its moratorium to expire 
during the height of flu season and during the first month of winter.3 Motor Vehicle Mfrs., 463 
U.S. at 48 (stressing “an agency must cogently explain why it has exercised its discretion in a given 
manner”); id. at 43 (agency must sufficiently “examine the relevant data”).  
II.  PLAINTIFFS ARE SUFFERING IRREPARABLE HARM 
A. Plaintiffs Are Suffering Constitutional Injuries  
The CDC has asserted the power to alter the contractual rights of landlords throughout the 
nation and to criminalize an entirely legal means of protecting those rights under state law. As 
Plaintiffs have demonstrated above, the CDC does not possess that breathtaking authority. The 
Government characterizes this as a mere statutory dispute and contends, on that basis, that even if 
 
3 The Government’s only response is that it might extend the moratorium at its discretion. But 
viewed together with CDC’s snap judgment to issue the Order in September—without even 
enough time for a 30-day public comment period—and its assertion that it may consider extensions 
without setting forth a framework for that analysis, CDC’s “touch and go” approach is 
unpredictable and arbitrary on the whole. 
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Plaintiffs are correct, they cannot show that the CDC’s illicit assumption of power causes them 
irreparable harm. Opp. Br. at 10–11. But the CDC has not merely violated a statute, it has usurped 
Congress’ power to make law. As the Supreme Court has made clear, “an agency literally has no 
power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and 
until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 
374–75 (1986). Where an agency acts without congressional authorization, it necessarily violates 
the Constitution, for “[a]n agency may not confer power upon itself. To permit an agency to expand 
its power in the face of a congressional limitation on its jurisdiction would be to grant to the 
agency power to override Congress.” Id. And granting an agency the power to override Congress 
would be a clear violation of the separation of powers. 
“It is well established that the deprivation of constitutional rights ‘unquestionably 
constitutes irreparable injury.’”4 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting 
Elrod v. Burns, 427 U.S. 347, 373 (1976)). See also Mississippi Power & Light Co. v. United Gas 
Pipe Line Co., 760 F.2d 618, 630 n.12 (5th Cir. 1985) (recognizing that deprivation of 
constitutional rights is irreparable harm); 11A Wright & Miller, Fed. Pract. & Proc. § 2948.1 (3d 
ed. 2018) (“When an alleged deprivation of a constitutional right is involved . . . most courts hold 
that no further showing of irreparable injury is necessary.”). According to the Government, this 
principle applies only where First Amendment rights or the right to privacy are at stake. Opp. Br. 
at 10. But this is not so. See, e.g., Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1055–56 (5th 
Cir. 1997) (violation of due process rights constitutes irreparable harm); Planned Parenthood 
 
4 The Government is correct that Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) does 
not support the proposition that where constitutional claims are alleged, courts presume irreparable 
harm. Plaintiffs regret the error. Plaintiffs’ burden, instead, is to show a likelihood of irreparable 
harm. Id. at 22. 
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Ass’n of Cincinnati, Inc. v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (same); Am. 
Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058 (9th Cir. 2009) (violation of 
Dormant Commerce and Supremacy Clauses caused irreparable harm); Melendres, 695 F.3d at 
1002 (violation of Fourth Amendment rights constitutes irreparable harm). See also Morales v. 
Trans World Airlines, Inc., 504 U.S. 374, 381–82 (1992) (noting that obeying an unconstitutional 
law causes a party injury); Springtree Apartments, ALPIC v. Livingston Parish Council, 207 
F. Supp. 2d 507, 515 (M.D. La. 2001) (finding irreparable harm under the Fifth and Fourteenth 
Amendments where parish enforced an ordinance against a landowner that did not apply to the 
properties at issue). 
The Supreme Court has repeatedly held that the separation of powers protects individual 
liberty. See Plaintiffs’ Mem. in Support of Motion for Prelim. Inj. at 25–26 (citing cases). It follows 
that a violation of the separation of powers—such as the CDC’s exercise of the power to make law 
at issue in this case—constitutes irreparable harm. It would be bizarre, to say the least, if the 
principle were otherwise and a violation of the right to free speech constituted irreparable harm 
but a violation of the core animating principle of our Constitution did not. After all, one of the 
purposes of the right to free speech is to ensure that government remain “responsive to the will of 
the people.” New York Times v. Sullivan, 376 U.S. 254, 301 (1964). This is, of course, a key 
purpose of the separation of powers as well. See, e.g., Free Enterprise Fund v. Public Co. 
Accounting Oversight Bd., 561 U.S. 477, 513 (2010) (stating that separation of powers ensures 
that government remain accountable to the people). If the Government were correct, it would 
constitute irreparable harm to prevent Plaintiffs from talking about the separation of powers, but 
the courts would be entirely justified in shrugging off an actual violation of that principle.  
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B.  There Is No Prospect of Collecting Debts From All Insolvent Individuals 
The Government contends that there is no irreparable harm because Plaintiffs might be able 
to collect on back-rent at some later point. But, if we take seriously the sworn statements in the 
Renter Declarations, then the tenants are necessarily insolvent because they’ve attested to the fact 
that they cannot meet their contractual obligations. This point distinguishes Elmsford Apt. Assocs., 
LLC v. Cuomo, No. 20-CV-4062, 2020 WL 3498456, at *15 (S.D.N.Y. June 29, 2020). In Elmsford 
the plaintiffs challenged a state eviction moratorium where there was no requirement that the tenant 
attest to insolvency. While the Order theoretically permits landlords to pursue back-rent and late 
fees, the reality is that landlords cannot collect from insolvent tenants. And if there is no 
meaningful prospect of collecting from nonpaying tenants then there is necessarily irreparable 
harm. See Janvey v. Alguire, 647 F.3d 585, 600 (5th Cir. 2011) (finding that damages are 
irreparable if assets needed to pay damages are likely to dissipate); Mississippi Power & Light, 
760 F.2d at 630 n.12 (where a party is “unable to respond in damages”) (citing Restatement 
(Second) of Contracts §§ 359(1), 360 (1981)). See also Certified Restoration Dry Cleaning 
Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 550 (6th Cir. 2007) (recognizing irreparable harm 
where it would be difficult to ensure that a plaintiff would be fully compensated); Performance 
Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995) (recognizing 
irreparable harm where a “defendant is likely to be insolvent at the time of judgement”) (quoting  
Teradyne, Inc. v. Mostek Corp., 797 F.2d 43, 52 (1st Cir. 1986) (same); Roland Mach. Co. v. 
Dresser Indus., Inc., 749 F.2d 380, 386 (7th Cir. 1984) (same). Hoxworth v. Blinder, Robinson & 
Co., 903 F.2d 186, 206 (3d Cir. 1990) (recognizing that the possibility of an unsatisfied money 
judgment may establish irreparable injury).  
The Government implies that the tenants may be lying. Opp. Br. at 13. But this is a peculiar 
position for the Government to be taking when the CDC’s Order states that a tenant may invoke 
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the protections of the moratorium by submitting their sworn declaration that they cannot pay rent. 
It smacks of gamesmanship for the Government to now argue that landlords—and presumably 
local courts—should assume that many tenants are simply taking advantage of the moratorium. 
And the Government does not explain how a landlord is supposed to know whether a tenant is 
hiding assets or is otherwise capable of paying when they have sworn otherwise. In any event, 
local courts are doing precisely what one would expect—and what the CDC obviously intended 
when it issued the order: they are accepting tenant declarations at face value and preventing 
evictions. Declaration of Joshua Chambless ¶¶ 7-12. 
Nonetheless the Government speculates that these insolvent tenants might recover 
financially by the time a landlord should obtain judgment in a collection action. Yet there is no 
basis for assuming an insolvent individual will see a dramatic change in fortunes. Aside from the 
Northern District of Georgia’s decision in Brown, 2020 WL 6364310, nothing in the Government’s 
cited cases supports the proposition that an insolvent individual is likely become solvent going 
forward. See Dennis Melancon, Inc. v. City of New Orleans, 703 F.3d 262, 279 (5th Cir. 2012) (no 
finding of insolvency). The Brown decision is flawed because it assumes that an insolvent tenant 
is likely to receive a windfall. See Deckert v. Indep. Shares Corp., 311 U.S. 282, 290 (1940) 
(holding that a preliminary injunction was appropriate because there were “allegations” of 
insolvency).  
C. The CDC Abrogated Plaintiffs’ Right To Control Their Property 
The Government argues that only a permanent deprivation of real property constitutes 
irreparable harm. Opp. Br. at 11–12. The Government provides no citation for this proposition 
aside from the Northern District of Georgia’s decision in Brown, which balked only at assuming a 
categorical rule that any impingement of property rights is irreparable. The decision in Minard 
Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011), provides no support for 
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Defendants’ cramped view of irreparable harm. Minard Run Oil Co. recognized that a plaintiff 
may establish irreparable harm when denied immediate use of real property. Moreover, the 
Government fails to reconcile other cases that recognize irreparable harm where there the property 
interest is subject to neither permanent deprivation nor destruction. For example, in Roda Drilling 
Co. v. Siegal, 552 F.3d 1203, 1211 (10th Cir. 2009), real estate investors were held to have suffered 
irreparable harm in a suit against an investment manager because they were “miss[ing] 
opportunities.” Likewise, in E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808, (4th Cir. 2004), the 
Fourth Circuit recognized that there was irreparable harm in denying plaintiffs the right of 
immediate use of real property, even where the injury complained of was principally economic. 
Id. at 828–29. 
III.  
IT IS NEVER IN THE PUBLIC INTEREST FOR A FEDERAL AGENCY TO 
ACT LAWLESSLY 
The Government asserts that the public interest favors allowing for the continued 
enforcement of the CDC Order—even if Plaintiffs are correct that it violates the Constitution, was 
promulgated without statutory authority, and/or in violation of the APA. Opp. Br. at 33–34. 
Notably, Brown was wrongly decided to the extent it contradicts the U.S. Supreme Court’s recent 
holding, which unequivocally repudiated the idea that “the Constitution can be put away and 
forgotten” during a pandemic. Cuomo, 2020 WL 6948354, at *3.5 See Home Bldg. & Loan Ass’n 
v. Blaisdell, 290 U.S. 398, 426 (1934) (“Emergency does not increase granted power or remove or 
diminish the restrictions imposed upon power granted or reserved.”).  
 
5 The Government also points to a string of cases where the courts concluded it was not in the 
public interest to issue a preliminary injunction. But, tellingly, in all those cases plaintiffs were 
unlikely to prevail on the merits. The converse is true here. Because Plaintiffs are likely to prevail 
on the merits, the public interest factor necessarily weighs in their favor.  
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It can never be in the public interest to take actions that have not been authorized by 
Congress because ultra vires regulation violates the will of the governed. See INS v. Chadha, 462 
U.S. 919, 951–52 (1983) (defining the Legislature’s constitutional authority). For that matter, it 
can never be in the public interest to allow continued enforcement of a rule that violates the 
Administrative Procedure Act because, with enactment of the APA, Congress decided that 
adherence to notice-and-comment procedures served vital public functions. And it can never be in 
the public interest for government to violate separation of powers because the Constitution 
represents the “ultimate expression of the public interest.” Gordon v. Holder, 721 F.3d 638, 653 
(D.C. Cir. 2013). See Jackson Women’s Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 
2014) (“It is always in the public interest to prevent the violation of a party’s constitutional rights.”) 
(citing Awad v. Ziriax, 670 F.3d 1111, 1132 (10th Cir. 2012)). 
CONCLUSION 
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be granted. 
 
DATED: December 14, 2020. 
Respectfully submitted, 
/s/ STEVEN M. SIMPSON     
STEVEN M. SIMPSON* 
DC Bar No. 462553 
Pacific Legal Foundation 
3100 Clarendon Blvd., Suite 610 
Arlington, VA 22201 
Tel: (202) 888-6881 
SSimpson@pacificlegal.org 
 
/s/ JAMES C. RATHER, JR.  
JAMES C. RATHER, JR.  
Louisiana Bar No. 25839  
ALKER & RATHER, LLC  
4030 Lonesome Rd., Suite B  
Mandeville, LA 70448  
Tel: (985) 727-7501  
JRather@alker-rather.com 
LUKE A. WAKE* 
DC Bar No. 1009181 
ETHAN W. BLEVINS* 
Washington State Bar No. 48219 
HANNAH SELLS MARCLEY* 
Washington State Bar No. 52692 
Pacific Legal Foundation 
930 G Street 
Sacramento, CA 95814 
Tel: (916) 419-7111 
Fax: (916) 419-7747 
LWake@pacificlegal.org  
EBlevins@pacifclegal.org 
HMarcley@pacificlegal.org 
*Pro hac vice 
 
Attorneys for Plaintiffs 
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CERTIFICATE OF SERVICE 
I hereby certify that on December 14, 2020, I electronically filed the foregoing document 
with the Clerk of the Court via the CM/ECF system, which will cause a copy to be served upon 
counsel of record. 
 
By /s/ STEVEN M. SIMPSON 
  
STEVEN M. SIMPSON 
 
 
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