Plaintiffs' Notice of Supplemental Authority (Alabama Realtors) — Chambless v. Redfield (W.D. La., 2021-05-06)

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UNITED STATES DISTRICT COURT · No. 3:20-cv-01455-TAD-KDM · Doc. 57 · 2021-05-06 · Docket on CourtListener

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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. 
ROBERT REDFIELD, et al., 
      Defendants. 
 Case No. 3:20-cv-1455-TAD-KDM 
Judge Terry A. Doughty 
Magistrate Judge Kayla D. McClusky 
PLAINTIFFS’ NOTICE OF SUPPLEMENTAL AUTHORITY 
Plaintiffs submit this Notice of Supplemental Authority to inform the Court of the decision 
by the United States District Court for the District of Columbia in Alabama Association of 
Realtors, et. al, v. United States Department of Health and Human Services, et al., No. 1:20-cv-
03337-DLF (May 5, 2021), attached hereto as Exhibit 1. The District Court for the District of 
Columbia concluded, as have other federal courts to date, that the Defendants’ expansive 
interpretation of the 42 U.S.C. § 264 was against the plain meaning of the statute and not entitled 
to deference. Exhibit 1 at p. 17. Additionally, the District of Columbia court held that Congress 
had not ratified Defendants’ use of 42 U.S.C. § 264 when it extended the eviction moratorium by 
including § 502 in the Consolidated Appropriations Act, Pub. L. No. 116-260, § 502, 134 Stat. 
1182 (2020). Exhibit 1 at p. 18. As such, the Alabama Ass’n of Realtors opinion vacated and set 
aside the Center for Disease Control and Prevention’s eviction moratorium.   
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DATED:  May 6, 2021. 
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 May 6, 2021, 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. 
DATED:  May 6, 2021. 
/s/ Steven M. Simpson 
STEVEN M. SIMPSON 
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UNITED STATES DISTRICT COURT 
FOR THE DISTRICT OF COLUMBIA 
ALABAMA ASSOCIATION OF 
REALTORS, et al., 
Plaintiffs, 
 
v. 
UNITED STATES DEPARTMENT OF 
HEALTH AND HUMAN SERVICES, et al., 
Defendants. 
 
No. 20-cv-3377 (DLF) 
MEMORANDUM OPINION 
As part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub. 
L. No. 116-136, 134 Stat. 281 (2020), Congress enacted a 120-day eviction moratorium that
applied to rental properties receiving federal assistance, id. § 4024(b).  After that moratorium 
expired, the U.S. Department of Health and Human Services (HHS), through the Centers for 
Disease Control and Prevention (CDC), issued an order implementing a broader eviction 
moratorium that applied to all rental properties nationwide, 85 Fed. Reg. 55,292 (Sept. 4, 2020), 
which prompted this suit.  Since then, Congress has granted a 30-day extension of the CDC 
Order, and the CDC has extended the order twice itself.  The current order is set to expire on 
June 30, 2021.   
In this action, the plaintiffs raise a number of statutory and constitutional challenges to 
the CDC Order.  Before the Court is the plaintiffs  Motion for Expedited Summary Judgment, 
Dkt. 6, as well as the 
 Motion for Summary Judgment, Dkt. 26, and Partial Motion 
to Dismiss, Dkt. 32.  For the reasons that follow, the Court will grant the plaintiffs  motion and 
deny the 
 motions.  
EXHIBIT 1
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I. 
BACKGROUND 
On March 13, 2020, then-President Trump declared COVID-19 a national emergency.  
See generally Declaring a National Emergency Concerning the Novel Coronavirus Disease 
(COVID-19) Outbreak, Proclamation 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020).  Two weeks 
later, he signed the CARES Act into law.  See Pub. L. No. 116-136, 134 Stat. 281 (2020).  The 
CARES Act included a 120-day eviction moratorium with respect to rental properties that 
participated in federal assistance programs or were subject to federally-backed loans.  See id. § 
4024.  In addition, some
but not all
states adopted their own temporary eviction moratoria.  
72, 986 1024, Dkt. 40.  The CARES Act s federal 
eviction moratorium expired in July 2020.   
On August 8, 2020, then-President Trump issued an executive order directing the 
Secretary 
measures temporarily halting residential evictions of any tenants for failure to pay rent are 
reasonably necessary to prevent the further spread of COVID-19 from one State or possession 
-19 by Providing Assistance 
to Renters and Homeowners, Executive Order 13,945, 85 Fed. Reg. 49,935, 49,936 (Aug. 8, 
2020).   
Weeks later, on September 4, 2020, the CDC issued the 
Evictions To Prevent the Further Spread of COVID-
 Order , pursuant to § 361 of the 
Public Health Service Act, 42 U.S.C. § 264(a), and 42 C.F.R. § 70.2.  85 Fed. Reg. 55,292 (Sept. 
4, 2020).  In this order, the CDC determined that 
reasonably necessary measure . . . to prevent the further spread of COVID-19.  85 Fed. Reg. at 
55,296.  As the CDC explained, the eviction moratorium facilitates self-isolation for individuals 
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infected with COVID-19 or who are at a higher-risk of severe illness from COVID-19 given 
their underlying medical conditions.  Id. at 55,294.  It also enhances state and local officials  
ability to implement stay-at-home orders and other social distancing measures, reduces the need 
for congregate housing, and helps prevent homelessness.  Id. at 55,294. 
The CDC Order declared that a landlord, owner of a residential property, or other person 
with 
  Id. 
at 55,296.  To qualify for protection under the moratorium, a tenant must submit a declaration to 
their landlord affirming that they: (1) have 
efforts to obtain all available government 
; (2) expect to earn less than $99,000 in annual income in 2020, 
were not required to report any income in 2019 to the Internal Revenue Service, or received a 
stimulus check under the CARES Act; (3) are 
payment due to substantial loss of household income, loss of compensable hours of work or 
wages, a lay-off, or extraordinary out-of-
using best efforts to 
shared residence if evicted; (6) understand that rent obligations still apply; and (7) understand 
that the moratorium is scheduled to end on December 31, 2020.  Id. at 55,297.   
Unlike the CARES Act s moratorium, which only applied to certain federally backed 
rental properties, the CDC Order applied to all residential properties nationwide.  Id. at 55,293.  
In addition, the CDC Order includes criminal penalties.  Individuals who violate its provisions 
are subject to a fine of up to $250,000, one year in jail, or both, and organizations are subject to a 
fine of up to $500,000.  Id. at 55,296. 
The CDC Order was originally slated to expire on December 31, 2020.  Id. at 55,297.  As 
part of the Consolidated Appropriations Act, however, Congress extended the CDC Order to 
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apply through January 31, 2021, Pub. L. No. 116-260, § 502, 134 Stat. 1182 (2020).  On January 
29, 2021, the CDC extended the order through March 31, 2021.  Temporary Halt in Residential 
Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021).  In this 
extension, the CDC updated its findings to account for new evidence of how conditions had 
worsened since the original order was issued, as well as 
substantially contribute to COVID-
 Id. at 8022.  The CDC later extended the 
order through June 30, 2021.  Temporary Halt in Residential Evictions to Prevent the Further 
Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar. 31, 2021). 
A. Procedural History 
The plaintiffs
Danny Fordham, Robert Gilstrap, the corporate entities they use to 
manage rental properties (Fordham & Associates, LLC, H.E. Cauthen Land and Development, 
LLC, and Title One Management, LLC), and two trade associations (the Alabama and Georgia 
Associations of Realtors)
filed this action on November 20, 2020.  Compl., Dkt. 1.  They 
challenge the lawfulness of the eviction moratorium on a number of statutory and constitutional 
grounds.  The plaintiffs allege that the eviction moratorium exceeds the CDC
statutory 
authority, id. ¶¶ 81 84 (Count III), violates the notice-and-comment requirement, id. ¶¶ 63 70 
(Count I), and is arbitrary and capricious, id. ¶¶ 85 91 (Count IV), all in violation of the 
Administrative Procedure Act (APA).  The plaintiffs further allege that the eviction moratorium 
fails to comply with the Regulatory Flexibility Act.  Id. ¶¶ 71 78 (Count II).  To the extent that 
the Public Health Service Act authorizes the eviction moratorium, the plaintiffs allege that the 
Act is an unconstitutional delegation of legislative power under Article I.  Id.  ¶¶ 92 95 (Count 
V).  Finally, the plaintiffs allege that the eviction moratorium constitutes an unlawful taking of 
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property in violation of the Takings Clause, id. ¶¶ 96 103 (Count VI), violates the Due Process 
Clause, id. ¶¶ 96 110 (Count VII), and deprives the plaintiffs of their right of access to courts, 
id. ¶¶ 111 15 (Count VIII).  The plaintiffs seek declaratory and injunctive relief
and costs, and any other relief the Court deems just and proper.  Id. ¶¶ 116 20.    
Before the Court is the p
, Dkt. 6, and 
the Department
-motion for summary judgment.  Also before the Court is the 
Department
partial motion to dismiss, Dkt. 32, in which the Department argues that Congress 
ratified the CDC Order when it extended the eviction moratorium in the Consolidated 
Appropriations Act of 2021.  All three motions are now ripe for review. 
B. Relevant Decisions 
This Court is not the first to address a challenge to the national eviction moratorium set 
forth in the CDC Order.  In the last several months, at least six courts have considered various 
statutory and constitutional challenges to the CDC Order.  Most recently, the Sixth Circuit 
denied a motion to stay a district court decision that held that the order exceeded the CDC
authority under 42 U.S.C. § 264(a), see Tiger Lily, LLC v. United States Dep t of Hous. & Urb. 
Dev., No. 2:20-cv-2692, 2021 WL 1171887, at *4 (W.D. Tenn. Mar. 15, 2021) (concluding that 
the CDC Order exceeded the statutory authority of the Public Health Service Act), appeal filed 
No. 21-5256 (6th Cir. 2021); Tiger Lily, LLC v. United States Dep t of Hous. & Urb. Dev., 992 
F.3d 518, 520 (6th Cir. 2021) (denying emergency motion for stay pending appeal); see also 
Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention, No. 5:20-cv-2407, 2021 WL 911720, 
at *12 (N.D. Ohio Mar. 10, 2021) (holding that the CDC exceeded its authority under 42 U.S.C. 
§ 264(a)).  Two other district courts, however, declined to enjoin the CDC Order at the 
preliminary injunction stage, see Brown v. Azar, No. 1:20-cv-03702, 2020 WL 6364310, at *9
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11 (N.D. Ga. Oct. 29, 2020), appeal filed, No. 20-14210 (11th Cir. 2020); Chambless 
Enterprises, LLC v. Redfield, No. 20-cv-01455, 2020 WL 7588849, at *5 9 (W.D. La. Dec. 22, 
2020), appeal filed, No. 21-30037 (5th Cir. 2021).  Separately, another district court declared 
that the federal government lacks the constitutional authority altogether to issue a nationwide 
moratorium on evictions.  See Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-cv-
564, 2021 WL 742877, at *1 2, 10 11 (E.D. Tex. Feb. 25, 2021), appeal filed, No. 21-40137 
(5th Cir. 2021). 
II. 
LEGAL STANDARD 
56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247 48 (1986).  A fact is 
See id. at 
248; Holcomb v. Powell
reasonable jury could determine that the evidence warrants a verdict for the nonmoving party.  
See Anderson, 477 U.S. at 248; Holcomb, 433 F.3d at 895. 
In a case reviewing agency action
deciding, as a matter of law, whether the agency action is supported by the administrative record 
Sierra Club v. Mainella, 459 F. 
Supp. 2d 76, 90 (D
,
Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C. 
Cir. 2001) (internal quotation marks and footnote omitted). 
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III. 
ANALYSIS 
A. Standing 
 
West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017).  To 
establish standing, a plaintiff must demonstrate a concrete injury-in-fact that is fairly traceable to 
  Summers v. Earth Island 
Inst., 555 U.S. 488, 493 (2009).   
Since the CDC Order went into effect, the three real estate management company 
plaintiffs have each had tenants who have stopped paying rent, invoked the protections of the 
eviction moratorium, and would be subject to eviction but for the CDC Order.  See Decl. of 
Danny Fordham ¶¶ 2 5, 9 17, Dkt. 6-2; Decl. of Robert Gilstrap ¶¶ 2, 4 12, Dkt. 6-3.  At a 
minimum, these three plaintiffs have established a concrete injury that is traceable to the CDC 
Order and is redressable by a decision vacating the CDC Order.  See Summers, 555 U.S. at 493.  
[I]t is immaterial that other plaintiffs might be unable to demonstrate their own standing, J.D. 
v. Azar, 925 F.3d 1291, 1323 (D.C. Cir. 2019
Article III s case-or-controversy 
requirement is satisfied if one plaintiff can establish injury and standing
id.   
B. The Agency
 Authority 
Section 361 of the Public Health Service Act empowers the Secretary 
enforce such regulations as in his judgment are necessary to prevent the introduction, 
 either internationally or between states.1  42 
                                                 
1 
reorganizations not relevant here have resulted in the transfer of this responsibility to the 
Skyworks, 2021 WL 911720, at *5. 
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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 
Id.  The Secretary is also authorized to, within certain limits, make and enforce 
regulations to apprehend, exam
 
country.  Id. § 264(b) (d).   
By regulation, the Secretary delegated this authority to the Director of the CDC.  42 
C.F.R. § 70.2.  Pursuant to this regulation, when the Director of the CDC determines that the 
measures taken by health authorities of any state or local jurisdiction are insufficient to prevent 
 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.
Id.   
In determining whether the eviction moratorium in the CDC Order exceeds the 
the Department urges the Court to apply the familiar two-step 
Chevron framework.  See Defs.  
s Cross-
8 (citing Chevron, 
, 467 U.S. 837, 842 (1984)).  While it is true that 
CDC did not follow APA notice-and-comment rulemaking procedures before issuing the 
Eviction Moratorium,  Pl. s Mem. in 
21, Dkt. 6-1, Chevron deference is not necessarily limited to regulations that are the product of 
notice-and-comment rulemaking, Pub. Citizen, Inc. v. U.S. Dep t of Health & Hum. Servs., 332 
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F.3d 654, 660 (D.C. Cir. 2003).  The Chevron framework applies 
delegated authority to the agency generally to make rules carrying the force of law
agency interpretation claiming deference was promulgated in the exercise of that aut
United States v. Mead, 533 U.S. 218, 226 27 (2001); Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir. 
2012).  Here, the CDC Order was issued pursuant to a broad grant of rulemaking authority, see 
42 U.S.C. § 264(a) 
 
); 42 C.F.R. § 70.2 (delegating 
this authority to the Director of the CDC), and was 
ral 
applicability.   Kaufman v. Nielsen, 896 F.3d 475, 484 (D.C. Cir. 2018).  It was also 
a lawmaking pretense in mind, Mead, 533 U.S. at 233, published in the Federal Register, see 
Citizens Exposing Truth about Casinos v. Kempthorne, 492 F.3d 460, 467 (D.C. Cir. 2007), and 
backed with the threat of criminal penalties, 85 Fed. Reg. 55,296.  Because the CDC Order was 
clearly intended to have the force of law, the two-step Chevron framework applies.2 
Applying Chevron and using the traditional tools of statutory interpretation, a court must 
first consider at Step One 
 
Chevron, 467 U.S. at 842.  If Congress has directly spoken to [an] issue, that is the end of the 
                                                 
2 The fact that section 361 of the Public Health Service Act is administered by both the CDC and 
the FDA, see Control of Communicable Diseases; Apprehension and Detention of Persons With 
Specific Diseases; Transfer of Regulations, 65 Fed. Reg. 49,906, 49,907 (Aug. 16, 2000), does 
not preclude application of the Chevron framework.  While courts 
Chevron deference when the statute in question is administered by multiple agencies, Kaufman, 
896 F.3d at 483; see also, e.g., DeNaples v. Office of Comptroller of Currency, 706 F.3d 481, 
487 (D.C. Cir. 2013), the FDA and the CDC are both sub-agencies within HHS.  Accordingly, 
there is nothing special to undermine Chevron
congress
the 
statute, and there is little risk of conflicting mandates to regulated entities
Loan Syndications 
& Trading Ass n v. Sec. & Exch. Comm n, 882 F.3d 220, 222 (D.C. Cir. 2018) (summarizing 
instances where Chevron 
 
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Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 558 (D.C. 
Cir. 2016) (citing Chevron, 467 U.S. at 
effect to the unambiguously expressed intent of Congress
Lubow v. U.S. Dep t of State, 783 
F.3d 877, 884 (D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842 43).  Only if the text is silent 
or ambiguous does a court proceed to Step Two.  There, a court must 
s 
interpretation is permiss
Confederated Tribes of Grand Ronde Cmty., 
830 F.3d at 558.  To determine whether [an] agency s interpretation is permissible or instead is 
 
all the tools of statutory interpretation, Loving v. IRS, 742 
F.3d 1013, 1016 (D.C. Cir. 2014), and 
ordinary meaning at the time Congress enacted the statute, Wisconsin Cent. Ltd. v. United 
States, 138 S. Ct. 2067, 2070 (2018) (internal quotation marks and alteration omitted); see also 
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012) 
 
The first question, then, is whether the relevant statutory language addresses 
Chevron, 467 U.S. at 842.  As noted, the Public Health Service Act provides, 
in relevant part:  
The [CDC], with the approval of the Secretary, is authorized 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. For purposes of carrying 
out and enforcing such regulations, the [Secretary] may provide for such inspection, 
fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles 
found to be so infected or contaminated as to be sources of dangerous infection to human 
beings, and other measures, as in his judgment may be necessary. 
 
42 U.S.C. § 264(a).  Other subsections of the Act authorize, in certain circumstances, the 
quarantine of individuals in order to prevent the interstate or international spread of disease.  See 
id. § 264(b) (d).  Though the Public Health Service Act grants the Secretary broad authority to 
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make and enforce regulations necessary to prevent the spread of disease, his authority is not 
limitless.   
Section 264(a) provides the Secretary with general rulemaking authority 
enforce such regulations, id. § 264(a) (emphasis added), that 
to 
combat the international or interstate spread of communicable disease, id.  But this broad grant 
of rulemaking authority in the first sentence of § 264(a) is tethered to
and narrowed by
the 
second sentence.  It states: For purposes of carrying out and enforcing such regulations
id. 
(emphasis added), the Secretary 
 inspection, fumigation, disinfection, 
sanitation, pest extermination [and] destruction of animals or articles found to be so infected or 
contaminated as to be sources of dangerous infection to human beings.
Id.  
 
These enumerated measures are not exhaustive.  T
Id.  But any such 
 are 
reference to the enumerated 
  See Tiger Lily, 992 
F.3d at 522 23 (internal quotation marks and alteration omitted); id. at 522 (applying the 
ejusdem generis canon to interpret the residual catchall phrase in § 264(a)).  These 
 therefore be similar in nature to those listed in § 264(a).  Id.; Skyworks, 2021 
WL 911720, at *10.  And consequently, like the enumerated measures, 
 
are limited in two significant respects: first, they must be directed toward 
cles,  
42 U.S.C. § 264(a), and second, those 
found to be so infected or 
contaminated as to be sources of dangerous infection to human beings,  id.; see Skyworks, 2021 
WL 911720, at *10.  In other words, any regulations enacted pursuant to § 264(a) must be 
specific targets found  to be sources of infection.   Id. 
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The national eviction moratorium satisfies none of these textual limitations.  Plainly, 
imposing a moratorium on evictions is diffe
disinfect[ing], sanit[izing], . . . exterminat[ing] [or] destr[oying]
42 U.S.C. § 264(a), a potential 
source of infection.  See Tiger Lily, 992 F.3d at 524.  Moreover, interpreting t
to include evictions would stretch the term beyond its plain meaning.  See 
International Dictionary 156 (2d ed. 1945) 
see also Skyworks, 2021 WL 911720, at *10.  And even if the 
meaning of the term 
s could be stretched that far, the statute instructs that they must be 
found to be so infected or contaminated as to be sources of dangerous infection to human 
42 U.S.C. § 264(a).  The Secretary has made no such findings here.  The fact that 
individuals with COVID-19 can be asymptomatic and that the disease is difficult to detect, Mot. 
,3 does not broaden 
 plain text of § 
264(a) permits.    
The Department reads § 264(a) another way.  In the 
 view, the grant of 
rulemaking authority in § 264(a) is not limited in any way by the specific measures enumerated 
in § 264(a)
  
ss-Mot. at 18, 19 n.2.  According to the Department, 
Congress granted the Secretary 
any regulations that 
, id. at 11 (internal quotation 
marks omitted), across states or from foreign countries.  In other words, the grant of rulemaking 
authority in § 264(a)
 is a 
judgment  of public 
                                                 
3 The official transcript from the motions hearing held on April 29, 2021 is forthcoming, and this 
opinion will be updated to include citations to that transcript when it becomes available. 
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health authorities about what measures they deem necessary  
Id. at 9 
(quoting 42 U.S.C. § 264(a)).  
The Department
The first sentence of § 264(a) is the 
starting point in assessing the scope of 
 delegated authority.  But it is not the 
ending point.  While it is true that Congress granted the Secretary broad authority to protect the 
public health, it also prescribed clear means by which the Secretary could achieve that purpose.  
See 
, 466 F.3d 134, 139 (D.C. Cir. 
2006).  And those means place concrete limits on the steps the Department can take to prevent 
the interstate and international spread of disease.  See supra at 11.  To interpret the Act otherwise 
would ignore its text and structure.   
At Chevron
, this Court must apply the 
Mozilla Corp. v. Fed. Commc ns Comm n, 940 F.3d 1, 20 (D.C. Cir. 2019), including canons of 
construction, see ArQule, Inc. v. Kappos, 793 F. Supp. 2d 214, 219 20 (D.D.C. 2011).  These 
as far as 
the Department contends.   
First, [i]
[courts] must give 
effect, if possible, to every clause a
Williams v. Taylor, 529 U.S. 362, 404 
(2000) (internal quotation marks omitted).  Applying that principle here, the 
s broad 
reading of § 264(a) s first sentence would render the second sentence superfluous.  If the first 
sentence empowered the Secretary to enact any 
id., there would be no 
need for Congress to enumerate the 
that 
 
to carry out 
and enforce those regulations, see id.  Though th
,  Lamie v. 
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U.S. Tr., 540 U.S. 526, 536 (2004); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S. 
291, 299 n.1 (2006), like the plain language, it supports a narrow reading of the statute.   
Second, the canon of constitutional avoidance instructs that a court shall construe a 
statute to avoid serious constitutional problems unless such a construction is contrary to the clear 
intent of Congress.  See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades 
Council, 485 U.S. 568, 575 (1988).  An overly expansive reading of the statute that extends a 
nearly unlimited grant of legislative power to the Secretary would raise serious constitutional 
concerns, as other courts have found.  See, e.g., Skyworks, 2021 WL 911720, at *9 (noting that 
such a reading would raise doubts as to 
Congress violated the Constitution by granting 
such a broad delegation of power unbounded by clear limitations or principles. ); Tiger Lily, 992 
F.3d at 523 (same); id. 
power to insert itself into the landlord-tenant relationship without some clear, unequivocal 
; Terkel, 2021 WL 742877, at *4 6 (holding that 
the 
Clause).  Congress did not express a clear intent to grant the Secretary such sweeping authority.   
And third, the major questions doctrine is based on the same principle: 
Congress to speak clearly if it wishes to assign to an agency decisions of vast economic and 
political significance.
Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v. 
Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (emphasis added)); Am. Lung 
Ass n v. EPA, 985 F.3d 914, 959 (D.C. Cir. 2021) (collecting cases).  There is no question that 
the decision to impose a nationwide moratorium on evictions is one of vast economic and 
  Util. Air Regul. Grp., 573 U.S. at 324 (internal quotation marks omitted).  
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15 
Not only does the moratorium have substantial economic effects,4 eviction moratoria have been 
 Gonzales v. Oregon, 546 U.S. 
243, 267 (2006) (internal quotation marks omitted).  At least forty-three states and the District of 
Columbia have imposed state-based eviction moratoria at some point during the COVID-19 
pandemic, see 86 Fed. Reg. 16,731, 16,734, though, as the CDC noted in its most recent 
extension of the CDC O
jurisdictions, id. at 16,737 n.35.  Congress itself has twice addressed the moratorium on a 
nationwide-level
once through the CARES Act, see Pub. L. No. 116-136, § 4024, 134 Stat. 281 
(2020), and again through the Consolidated Appropriations Act, see Pub. L. No. 116-260, § 502, 
134 Stat. 1182 (2020).   
Accepting the 
s expansive interpretation of the Act would mean that 
Congress delegated to the Secretary the authority to resolve not only this important question, but 
endless others that are also 
.   
Gonzales, 546 U.S. at 267 (internal quotation marks omitted).  Under its reading, so long as the 
Secretary can make a determination that a given measure is necessary  to combat the interstate 
or international spread of disease, there is no limit to the reach of his authority.5 
                                                 
4 In their briefing, the parties dispute the economic impact of the CDC order, see, e.g., Pl. s 
Mem. at 2 (estimating the nation
-
consequence of the initial moratorium); Def. s Cross-Mot. at 15 n.4 (disputing these figures).  
Regardless, the economic impact of the CDC Order is substantial.  Indeed, the CDC itself 
estimates that 
-
 as well as other State and local protections, 85 Fed. Reg. at 55,294 95.  
The CDC Order also 
id. at 
55,296, which means 
. 
5 The only other potential limitation, imposed by regulation, is that the Director of the CDC 
would need to conclude that state and local health authorities have not taken sufficient measures 
to prevent the spread of communicable disease.  See 42 C.F.R. § 70.2. 
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16 
Congress could not have intended to delegate
 to an agency 
in so cryptic a fashion.
Brown & Williamson Tobacco Corp., 529 U.S. at 159.  To be sure, 
COVID-19 is a novel disease that poses unique and substantial public health challenges, see 
Def. s Cross-Mot. at 14, but the Court 
Loving., 742 F.3d at 1021; see also 
Brown & Williamson, 529 U.S. at 160.  
It is also telling that the CDC has never used § 264(a) in this manner.  As the Department 
confirms, § 264(a) 
 . . . for disease-control purposes.  See Defs.  Cross-Mot. at 13 15, 23. 
hen an agency claims to discover in a long-extant statute an unheralded power to regulate a 
significant portion of the American economy
 announcement with a 
measure of skepticism
Util. Air Regul. Grp., 573 U.S. at 324 (internal quotation marks 
omitted).   
The Department advances one final counterargument.  It notes that subsequent 
subsections of the statute, § 264(b) (d), contemplate that the Secretary may, under certain 
believed to be infected with a 
(d).  And it stresses 
that enforced quarantines are not listed in
and are different in kind from
the measures 
enumerated in § 264(a).  
-Mot. at 10 11.  Accordingly, the Department contends 
that the presence of these subsequent subsections demonstrates that the list of means in the 
second sentence of § 264(a) imposes no 
 under § 264(a).  Id. 
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17 
This argument is not persuasive.  No doubt, Congress intended to give the Secretary
and, by extension, health experts in the CDC
the discretion and flexibility to thwart the spread 
of disease.  But the quarantine provisions in § 264(b) (d) are structurally separate from those in 
§ 264(a).  Tiger Lily, 992 F.3d at 524 (noting that the provisions in § 264(b) (d) restrict 
individual liberty interests, while § 264(a) is concerned exclusively with property interests).  And 
regardless, like the enumerated measures in § 264(a), the quarantine provisions are cabined and 
directed toward individuals who are either entering the United States or 
42 U.S.C. § 264(c) (d)
Skyworks, 2021 WL 911720, at *10.  The quarantine provisions in § 264(b) (d) therefore do not 
provide support for the eviction moratorium.   
In sum, the Public Health Service Act authorizes the Department to combat the spread of 
disease through a range of measures, but these measures plainly do not encompass the 
nationwide eviction moratorium set forth in the CDC Order.6  Thus, the Department has 
exceeded the authority provided in § 361 of the Public Health Service Act, 42 U.S.C. § 264(a).   
C. Ratification of the CDC Order 
In its partial motion to dismiss, the Department argues that Congress ratified the 
action when it extended the moratorium in the Consolidated Appropriations Act.7  See 
Partial Mot. at 7 9.  The initial CDC Order was set to expire on December 31, 2020, see 85 Fed. 
                                                 
6 Because the CDC O
ges to the eviction moratorium. 
7 The Department initially argued in its partial motion to dismiss that Counts I-V of the 
complaint were moot in light of 
extension of the CDC Order.  Defs  Mem. in Supp. 
of Partial Mot. to Dismiss 
at 1, Dkt. 32-1.  But this congressional 
extension of the CDC Order has since expired, so the Department has withdrawn this argument. 
See Joint Status Report at 2, Dkt. 36. 
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18 
Reg. at 55,297, but Congress extended the expiration date until January 31, 2021, by including § 
502 in the Consolidated Appropriations Act.  Section 502 provided:  
The order issued by the Centers for Disease Control and Prevention under section 361 
of the Public Health Service Act (42 U.S.C. 264), entitled Temporary Halt in 
Residential Evictions To Prevent the Further Spread of COVID 19  (85 Fed. Reg. 
55292 (September 4, 2020) is extended through January 31, 2021, notwithstanding the 
effective dates specified in such Order. 
Pub. L. No. 116-260, § 502, 134 Stat. 1182 (2020).   
has the power to ratify the acts which it might have authorized  in the first 
Thomas v. Network Sols., Inc., 176 F.3d 500, 506 (D.C. Cir. 1999) (quoting United States 
v. Heinszen & Co.
and give the force of law to official action 
unauthorized when taken,  Swayne & Hoyt v. United States, 300 U.S. 297, 301 02 (1937).  To 
do so, however, Congress must make its intention explicit.  Heinszen, 206 U.S. at 390.   
Congress did not do so here.  When Congress granted a temporary extension of the 
eviction moratorium by enacting § 502, it acknowledged that the CDC issued its order pursuant 
to the Public Health Service Act.  It did not, however, expressly approve of the agency s 
interpretation of 42 U.S.C. § 264(a) or provide the agency with any additional statutory 
authority.  See Tiger Lily, 992 F.3d at 524; Skyworks, 2021 WL 911720, at *12.  Instead, 
Congress merely extended the CDC Order for a limited 30-day duration.   
[C]ongressional acquiescence to administrative interpretations of a statute
  See Solid Waste Agency of N. Cook Cty. v. U.S. Army 
Corps of Eng rs, 531 U.S. 159, 160 (2001
[M]ere congressional acquiescence in the CDC s 
assertion that the [CDC Order] was supported by 42 U.S.C. § 264(a) does not make it so.   Tiger 
Lily, 992 F.3d at 524.  Because Congress withdrew its support for the CDC Order on January 31, 
2021, the order now stands
and falls
on the text of the Public Health Service Act alone.  For 
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19 
all the reasons stated above, supra Part III.B., the national eviction moratorium in the CDC 
Order is unambiguously foreclosed by the plain language of the Public Health Service Act. 
D. Remedy 
Both parties agree that if the Court concludes that the Secretary exceeded his authority by 
issuing the CDC Order, vacatur is the appropriate remedy.  See 
13, 30
31.  Nonetheless, the Department urges the Court to limit any vacatur order to the plaintiffs with 
standing before this Court.  Defs.  Partial Mot. to Dismiss at 23.  This position 
O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). 
T
t is that 
the rules are vacated
, 145 F.3d 1399, 1409 (D.C. Cir. 1998) (internal 
quotation marks omitted); see also O.A., 404 F. Supp. 3d at 109.  Accordingly, consistent with 
the Administrative Procedure Act, 5 U.S.C. § 706(2)(A), 
see Nat l 
Mining Ass n, 145 F.3d at 1409, the CDC Order must be set aside.   
*** 
The Court recognizes that the COVID-19 pandemic is a serious public health crisis that 
has presented unprecedented challenges for public health officials and the nation as a whole.  
The pandemic has triggered difficult policy decisions that have had enormous real-world 
consequences.  The nationwide eviction moratorium is one such decision.   
It is the role of the political branches, and not the courts, to assess the merits of policy 
measures designed to combat the spread of disease, even during a global pandemic.  The 
question for the Court is a narrow one: Does the Public Health Service Act grant the CDC the 
legal authority to impose a nationwide eviction moratorium?  It does not.  Because the plain 
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20 
language of the Public Health Service Act, 42 U.S.C. § 264(a), unambiguously forecloses the 
nationwide eviction moratorium, the Court must set aside the CDC Order, consistent with the 
Administrative Procedure Act, see 5 U.S.C. § 706(2)(C), and D.C. Circuit precedent, see 
National Mining Ass n, 145 F.3d at 1409. 
CONCLUSION 
For the foregoing reasons, the plaintiffs  motion for expedited summary judgment is 
granted and the 
motion for summary judgment and partial motion to dismiss are 
denied.  A separate order consistent with this decision accompanies this memorandum opinion.   
 
 
 
 
 
 
 
 
 
 
_ 
 
 
 
 
 
 
 
 
 
 
 
May 5, 2021  
 
 
 
 
 
United States District Judge 
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