Court filing

Motion for Preliminary Injunction — Skyworks v. CDC

Filed November 2, 2020 in Skyworks, Ltd. v. Centers for Disease Control and Prevention; one of 14 filings from this case.

Record facts

Court	U.S. District Court for the Northern District of Ohio
Filed	2020-11-02

U.S. District Court for the Northern District of Ohio · No. 5:20-cv-02407-JRA · Doc. 12 · 2020-11-02 · Docket on CourtListener

Full text

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SKYWORKS, LTD.; CEDARWOOD
VILLAGE APARTMENTS I & II OWNER
B, LLC; MONARCH INVESTMENT AND
MANAGEMENT GROUP, LLC; TOLEDO
PROPERTIES OWNER B, LLC and
NATIONAL ASSOCIATION OF HOME
BUILDERS,

Plaintiffs,

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;
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; ALEX AZAR, in his
official capacity as Secretary of Health and
Human Services; WILLIAM P. BARR, in
his official capacity as Attorney General of
the United States,

Defendants.

Case No. 5:20-cv-02407-JRA

JUDGE JOHN R. ADAMS

MOTION FOR PRELIMINARY
INJUNCTION

Pursuant to Federal Rule of Civil Procedure 65(a), Plaintiffs file this motion for a
preliminary injunction. Plaintiffs submit that a preliminary injunction is warranted because they
are likely to prevail on the merits, they will otherwise suffer irreparable harm, the balance of
equities favors an injunction and an injunction is in the public interest.
In support of this motion, Plaintiffs submit the following concurrently filed documents:
Case: 5:20-cv-02407-JRA Doc #: 12 Filed: 11/02/20 1 of 40. PageID #: 77

1. Memorandum of Law in Support of Plaintiff’s Motion for Preliminary Injunction;
2. Declaration of Lila J. Wohlwend in Support of Plaintiffs’ Motion for Preliminary
Injunction;
3. Declaration of Neal Cusick in Support of Plaintiff’s Motion for Preliminary Injunction;
4. Declaration of Richard DiBianca in Support of Plaintiffs’ Motion for Preliminary
Injunction;
5. Declaration of Dean Schwanke in Support of Plaintiff’s Motion for Preliminary
Injunction.
DATED: November 2, 2020.
Respectfully submitted:
/s/ MAURICE A. THOMPSON
MAURICE A. THOMPSON
(0078548)
1851 Center for Constitutional Law
122 E Main St.
Columbus, OH 43215
Tel: (614) 340-9817
Mthompson@ohioconstitution.org

STEVEN M. SIMPSON*
DC Bar No. 462553
Pacific Legal Foundation
3100 Clarendon Blvd., Suite 610
Arlington, VA, 22201
Tel: (202) 888-6881
SSimpson@pacificlegal.org

LUKE A. WAKE*
DC Bar No. 1009181
ETHAN W. BLEVINS*
Washington State Bar No. 48219
HANNAH SELLS MARCLEY*
Washington State Bar No. 52692
Pacific Legal Foundation
930 G Street
Sacramento CA 95814
Tel: (916) 419-7111
Fax: (916) 419-7747
LWake@pacificlegal.org
EBlevins@pacifclegal.org
HMarcley@pacificlegal.org

*Pro hac vice applications pending
Attorneys for Plaintiffs
Case: 5:20-cv-02407-JRA Doc #: 12 Filed: 11/02/20 2 of 40. PageID #: 78

IN THE UNITED STATES DISTRICT COURT
FOR THE NORTHERN DISTRICT OF OHIO
EASTERN DIVISION

SKYWORKS, LTD.; CEDARWOOD
VILLAGE APARTMENTS I & II OWNER
B, LLC; MONARCH INVESTMENT AND
MANAGEMENT GROUP, LLC; TOLEDO
PROPERTIES OWNER B, LLC; and
NATIONAL ASSOCIATION OF HOME
BUILDERS,

Plaintiffs,

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. 5:20-cv-02407-JRA

JUDGE JOHN R. ADAMS

MEMORANDUM OF LAW IN SUPPORT OF
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS
TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION .......................................................................................................................... 1
STATEMENT OF FACTS ............................................................................................................. 3
ARGUMENT .................................................................................................................................. 5
I.
PLAINTIFFS ARE LIKELY TO SUCCEED ON THE MERITS ..................................... 6
A.
The order exceeds the CDC’s statutory and regulatory authority ................................... 6
1.
The text of the statute and regulation confine the CDC’s action to conventional,
specific disease-prevention measures that do not involve extensive control over
human activity. ......................................................................................................... 8
2.
Interpretive presumptions regarding congressional intent favor a narrow
reading of the statute. ............................................................................................. 15
a.
Congress did not clearly state that it intended to alter the
state-federal balance. ........................................................................................... 15
b.
The CDC’s broad interpretation of its authority would create severe
constitutional concerns. ....................................................................................... 16
c.
The CDC’s broad interpretation of its authority would violate the
rule of lenity. ....................................................................................................... 19
B.
If the statute can be read broadly enough to authorize an eviction moratorium, then it
violates the non-delegation doctrine. ............................................................................ 19
C.
The CDC’s Eviction Moratorium Violates the APA’s Notice and Comment
Requirement ................................................................................................................. 22
D.
The CDC’s Eviction Moratorium is Arbitrary and Capricious ..................................... 23
II.
Without an Injunction, Plaintiffs will Suffer Irreparable Harm. ....................................... 25
III. The Public Interest and Balance of Equities Weigh in Plaintiffs’ Favor. ......................... 27
CONCLUSION ............................................................................................................................. 29

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TABLE OF AUTHORITIES

Page(s)
Cases
A.L.A Schechter Poultry Corp. v. United States,
295 U.S. 495 (1935) ...........................................................................................................20, 22
Abramski v. United States, 573 U.S. 169 (2014) ...........................................................................19
Adams & Boyle, P.C. v. Slatery, 956 F.3d 913 (6th Cir. 2020) .....................................................28
Ali v. Federal Bureau of Prisons, 552 U.S. 214 (2008)...................................................................8
Am. Trucking Ass’ns, Inc. v. City of Los Angeles,
559 F.3d 1046 (9th Cir. 2009) .................................................................................................25
Armstrong v. United States, 364 U.S. 40 (1960) ...........................................................................28
Azar v. Allina Health Servs., 139 S. Ct. 1804 (2019) ....................................................................23
Basicomputer Corp. v. Scott, 791 F. Supp. 1280 (N.D. Ohio 1991),
aff’d, 973 F.2d 507 (6th Cir. 1992) ..........................................................................................27
BE & K Constr. Co. v. NLRB, 536 U.S. 516 (2002) ......................................................................18
Bond v. United States, 564 U.S. 211 (2011) ............................................................................25, 26
Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379 (2011) .........................................................18
Boumediene v. Bush, 553 U.S. 723 (2008) ....................................................................................25
Brown v. Azar, 1:20-CV-03702-JPB, 2020 WL 6364310 (Oct. 29, 2020) ....................................14
Burlington Truck Lines v. United States,
371 U.S. 156 (1962) .................................................................................................................24
California Motor Transp. Co. v. Trucking Unlimited,
404 U.S. 508 (1972) .................................................................................................................18
Carpenter Tech. Corp. v. City of Bridgeport,
180 F.3d 93 (2d Cir. 1999).......................................................................................................26
Certified Restoration Dry Cleaning Network, LLC v. Tenke Corp.,
511 F.3d 535 (6th Cir. 2007) .....................................................................................................6
Christopher v. Harbury, 536 U.S. 403 (2002) .........................................................................26, 28
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................22
Circuit City Stores, Inc. v. Adams, 532 U.S. 105 (2001) .................................................................9
Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S. 402 (1971) .................................................................................................................22
Clinton v. City of New York, 524 U.S. 417 (1998) ........................................................................25
Crowell v. Benson, 285 U.S. 22 (1932) ...................................................................................15, 16
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iii

CSX Transp., Inc. v. Alabama Dep’t of Revenue,
562 U.S. 277 (2011) .................................................................................................................11
Deja Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn.,
274 F.3d 377 (6th Cir. 2001) ...................................................................................................27
East Tennessee Nat. Gas Co. v. Sage,
361 F.3d 808 (4th Cir. 2004) ...................................................................................................27
Economou v. Physicians Weight Loss Centers of America,
756 F. Supp. 1024 (N.D. Ohio 1991) .......................................................................................27
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) ...............................................................................................................6, 7
Free Enterprise Fund v. Public Co. Accounting Oversight Bd.,
561 U.S. 477 (2010) .................................................................................................................25
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n,
23 F.3d 1071 (6th Cir. 1994) ...................................................................................................27
Girl Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc.,
549 F.3d 1079 (7th Cir. 2008) .................................................................................................26
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ........................................................................27
Gregory v. Ashcroft, 501 U.S. 452 (1991) .....................................................................................15
Gundy v. United States, 139 S. Ct. 2116 (2019) ............................................................................20
Home Bldg. & Loan Ass’n v. Blaisdell,
290 U.S. 398 (1934) ...................................................................................................................2
Johnson v. Couturier, 572 F.3d 1067 (9th Cir. 2009)....................................................................29
K-Mart Corp. v. Oriental Plaza, Inc.,
875 F.2d 907 (1st Cir. 1989) ....................................................................................................26
Kaiser Aetna v. United States, 444 U.S. 164 (1979)......................................................................27
Kungys v. United States, 485 U.S. 759 (1988).............................................................10–11, 14, 15
Louisiana Pub. Serv. Comm’n v. FCC,
476 U.S. 355 (1986) ...................................................................................................................7
McBoyle v. United States, 283 U.S. 25 (1931) ..............................................................................10
Midwest Institute of Health v. Governor of Michigan,
No. 161492, slip op. (Mich. S. Ct. Oct. 2, 2020) .....................................................................22
Minard Run Oil Co. v. U.S. Forest Service,
670 F.3d 236 (3d Cir. 2011).....................................................................................................26
Moltan Co. v. Eagle Picher Indus., Inc.,
55 F.3d 1171 (6th Cir. 1995) ...................................................................................................29
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co.,
463 U.S. 29 (1983) ...................................................................................................................24
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New York v. United States, 505 U.S. 144 (1992) ...........................................................................18
NFIB v. Sebelius, 567 U.S. 519 (2012) ..........................................................................................18
Norfolk & Western R. Co. v. Train Dispatchers,
499 U.S. 117 (1991) ...................................................................................................................8
Opulent Life Church v. City of Holly Springs, Miss.,
697 F.3d 279 (5th Cir. 2012) ...................................................................................................27
Overstreet v. Lexington-Fayette Urban County Gov’t,
305 F.3d 573 (6th Cir. 2002) .....................................................................................................6
Owen of Georgia, Inc. v. Shelby County,
648 F.2d 1084 (6th Cir. 1981) ...............................................................................................8, 9
P.J.E.S. v. Wolf, No. 1:20-cv-2245,
2020 WL 5793305 (D.D.C. Sept. 25, 2020) ............................................................................16
Panama Refining Co. v. Ryan,
293 U.S. 388 (1935) .................................................................................................................20
Perez v. Mortg. Bankers Ass’n,
575 U.S. 92 (2015) ...................................................................................................................23
Performance Unlimited, Inc. v. Questar Publishers, Inc.,
52 F.3d 1373 (6th Cir. 1995) ...................................................................................................27
Pike v. Bruce Church, Inc., 397 U.S. 137 (1970) ..........................................................................28
State ex rel. Pizza v. Rezcallah,
702 N.E.2d 81 (Ohio 1998) .....................................................................................................29
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati,
822 F.2d 1390 (6th Cir. 1987) .................................................................................................28
Rewis v. United States, 401 U.S. 808 (1971) .................................................................................19
RoDa Drilling Co. v. Siegal, 552 F.3d 1203 (10th Cir. 2009) .......................................................26
Rogers v. Comm’r of Soc. Sec., 486 F.3d 234 (6th Cir. 2007) .......................................................24
Salinas v. United States, 522 U.S. 52 (1997) .................................................................................15
Solid Waste Agency of N. Cook Cty. v. U.S. Army Corps of Engineers,
531 U.S. 159 (2001) .................................................................................................................16
Sure-Tan, Inc. v. NLRB, 467 U.S. 883 (1984) ...............................................................................18
Synar v. United States, 626 F. Supp. 1374 (D.D.C. 1986) ............................................................22
Tennessee Hosp. Ass’n v. Azar, 908 F.3d 1029 (6th Cir. 2018) ....................................................23
United States v. Butler, 297 U.S. 1 (1936) .....................................................................................14
United States v. Cain, 583 F.3d 408 (6th Cir. 2009) .....................................................................23
United States v. Lopez, 514 U.S. 549 (1995) .................................................................................17
United States v. Robel, 389 U.S. 258 (1967) ................................................................................22
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United States v. Santos, 553 U.S. 507 (2008) ................................................................................19
Whitman v. Am. Trucking Ass’ns,
531 U.S. 457 (2001) .........................................................................................................2, 8, 22
Winter v. Nat’l Res. Def. Council,
555 U.S. 7 (2008) .................................................................................................................6, 25
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Capital, Inc.,
274 F.3d 1085 (6th Cir. 2001) .................................................................................................26
Yates v. United States, 574 U.S. 528 (2015) ..............................................................8, 9, 11, 14, 19
Statutes
5 U.S.C. § 706 ................................................................................................................................24
20 U.S.C. § 3508 ..............................................................................................................................6
42 U.S.C. § 264 ..............................................................................................................6, 12, 16, 21
42 U.S.C. § 264(b)–(d) ..................................................................................................................12
42 U.S.C. § 264(e) ...................................................................................................................13, 16
42 U.S.C. § 265 ..............................................................................................................................16
Ohio Rev. Code Ann. § 5321.03 ....................................................................................................26
Ohio Rev. Code Ann. tit. XIX, Ch. 1923 .......................................................................................26
Pub. L. No. 116-136, § 4024 (2020) (CARES Act) .......................................................................11
Public Health Service Act section 361, 42 U.S.C. § 264(a) ..................1, 6, 7, 9, 11–13, 17, 20, 21
Constitutional Provisions
U.S. Const. amend. I ......................................................................................................................18
U.S. Const. amend. X.....................................................................................................................17
U.S. Const. art I, § 1.......................................................................................................................20
Rule
Fed. R. Civ. P. 65 ...........................................................................................................................29
Other Authorities
42 C.F.R. § 70.2 .....................................................................................................1, 6, 7, 10, 11, 13
31 Fed. Reg. 8855 (June 25, 1966) ..................................................................................................6
85 Fed. Reg. 55,292 (Sept. 4, 2020) ......................................................................................3, 4, 13
H.R. Rep. No. 78-1364 (1944) .......................................................................................................10
Kelley, William K., Avoiding Constitutional Questions as a Three-Branch
Problem, 86 Cornell L. Rev. 831 (2001) .................................................................................19
Scalia, Antonin & Garner, Bryan, Reading Law: The Interpretation of Legal Texts
(Thompson/West 2012) .......................................................................................................8, 19
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Schumaker, Erin, Timeline: How Coronavirus Got Started, ABC News,
https://abcnews.go.com/Health/timeline-coronavirus-
started/story?id=69435165 .......................................................................................................23
Van Someren Greve, Robert, Protecting Tenants Without Preemption, 25 Geo. J.
on Poverty L. & Pol’y 135 (2017) ...........................................................................................16

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INTRODUCTION
On September 4, 2020, the CDC imposed a ban on evictions that purports to reorder the
contractual relationships between landlords and tenants nationwide and to suspend the legal
processes designed to provide efficient and orderly adjudication of their rights. The CDC’s
eviction moratorium represents a sweeping assumption of power that the CDC does not possess.
The laws and regulations on which the CDC relies, primarily section 361 of the Public Health
Service Act, 42 U.S.C. § 264(a), and 42 C.F.R. § 70.2, allow the CDC to take the sorts of actions
one would expect from a federal agency that was established to research public health matters,
provide public health education, and help prevent the spread of infectious diseases. For example,
the CDC is permitted to inspect, fumigate, disinfect, sanitize, exterminate pests, and destroy
animals or articles believed to be sources of infection in humans when the Director determines
that actions taken by states are insufficient to prevent the spread of disease across state lines. See
42 C.F.R. § 70.2.
Like many statutes and regulations, these provisions allow the CDC Director to take other
measures including those mentioned above that he believes are “reasonably necessary” to
accomplish the laws’ purposes. 42 C.F.R. § 70.2. But if such commonplace language can be read
to allow the CDC to impose a nationwide eviction moratorium, then it would allow the CDC to
do anything to stem the spread of COVID-19, including any of the actions that state and local
governments have taken since the beginning of the pandemic. Such an interpretation would not
only render superfluous the enumerated powers HHS and CDC are given under the law, it would
constitute a grant of authority to the CDC and HHS to make law, rather than to implement it. It
would also expand the federal government’s power far beyond what the Constitution allows—
effectively creating a federal police power.
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But Congress did not grant the CDC the breathtakingly broad power it asserts. As the
Supreme Court has stated in a related context, “Congress does not hide elephants in
mouseholes.” Whitman v. Am. Trucking Ass’ns, 531 U.S. 457, 468 (2001). Nor does an
“emergency,” whether health-related or otherwise, create powers that agencies or the federal
government do not otherwise possess. See Home Bldg. & Loan Ass’n v. Blaisdell, 290 U.S. 398,
426 (1934) (“While emergency does not create power, emergency may furnish the occasion for
the exercise of power.”).
Our Constitution ensures, to the extent possible, that our government remains
accountable to the people and that the laws and policies it follows are based on the consent of the
governed. The CDC’s eviction moratorium short-circuited that process, not only by usurping the
power of Congress to make law, but by failing even to follow the notice and comment
rulemaking procedures under the Administrative Procedure Act. One of the many purposes of
this process is to ensure that those most directly affected by agency actions that have the force of
law—here, the force of criminal law—be permitted to comment on the agency rules, which
makes the process of agency rulemaking open and accountable and, often, renders the resulting
rules more just and more effective.
Plaintiffs are landlords who have held up their end of their lease agreements with their
tenants, only to be told, fully eight months after the pandemic began, that the CDC has decided
their tenants need not hold up their end of the bargain under those same agreements. Plaintiffs
recognize that the pandemic has presented an extreme challenge for Americans and governments
nationwide. They, like every American, have felt the impact of the pandemic. Unlike most
Americans, however, they are now being singled out by the federal government and told to bear
disproportionate costs of fighting the pandemic because they have chosen to rent their properties
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to others. This treatment would be unjust under any circumstance, but it is particularly unjust
when imposed by an agency for which the Plaintiffs did not vote and about whose policies the
Plaintiffs had no say.
STATEMENT OF FACTS
In early September, the CDC promulgated an Order titled “Temporary Halt in Residential
Evictions to Prevent the Further Spread of COVID-19,” which took effect on September 4, 2020,
and lasts until December 31, 2020, unless extended. 85 Fed. Reg. 55,292 (Sept. 4, 2020). During
this time period, landlords are prohibited from evicting qualifying tenants from their residential
rental properties in any state that provides a level of public-health protections below the
requirements listed in the Order. Id. at 55,296. Landlords who violate the Order face stiff
criminal penalties, including fines of up to $100,000, up to a year in jail, or both. For
organizational landlords, fines can go up to $200,000 per event. Id.
To qualify for the moratorium, tenants must execute a declaration (known as a “Renter’s
or Homeowner’s Declaration”) stating, under penalty of perjury, that: (1) they have used best
efforts to obtain government housing assistance; (2) they make less than $99,000 annually (or
$198,000 if filing jointly); (3) they are unable to pay full rent due to a substantial loss of income,
a lay-off, or extraordinary medical expenses; (4) they have used their best efforts to make partial
rent payments; and (5) if evicted, they are likely to be rendered homeless or have to live in close
quarters with others. Id. at 55,293.
The Order defines “evict” and “eviction” broadly to include “any action by a landlord . . .
to remove or cause the removal of a covered person from a residential property.” Id. (emphasis
added). The Order does not define “any action,” nor does it state whether landlords may initiate
an eviction proceeding or challenge a tenant’s declaration in such a proceeding. On October 9,
2020, however, the CDC issued non-binding “guidance”—in the form of “Frequently Asked
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Questions”—that purports to clarify whether local courts can entertain eviction actions at all
under the Order. The FAQ states that “[t]he Order does not preclude a landlord from challenging
the truthfulness of a tenant’s declaration in any state or municipal court” and that the Order is not
“intended to prevent landlords from starting eviction proceedings, provided that the actual
eviction of a covered person for non-payment of rent does NOT take place during the period of
the Order.” Center for Disease Control and Prevention, HHS/CDC Temporary Halt in
Residential Evictions to Prevent the Further Spread of COVID-19: Frequently Asked Questions
at 4 (Oct. 12, 2020).1 It also states, however, that the process for adjudicating issues the Order
presents “will be carried out according to state and local laws and rules” and that “State and local
courts may take judicial notice of the CDC Order, and the associated criminal penalties that may
be imposed for non-compliance in making a formal judgment about any pending or future
eviction action filed while this Order remains in effect.” Id.
Plaintiffs are landlords and a building association that are directly affected by the CDC
eviction moratorium. Plaintiff Skyworks, Ltd. owns and operates residential rental properties
in Stark County, Ohio. Declaration of Lila Wohlwend ¶ 5, attached hereto as Exhibit A,
(“Wohlwend Decl.”). In one of the properties Skyworks owns in Canton, a tenant refused to pay
rent for October, despite Skyworks’ efforts to work with the tenant. Id. ¶¶ 12–15. Skyworks
informed her that, under the terms of the lease, she must either continue to pay rent or vacate the
premises. The tenant did neither. Instead, she sent Skyworks an executed copy of a Renter’s
Declaration invoking the CDC eviction moratorium. Id. Because the Canton Municipal Court has

1 Available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-moratoria-order-
faqs.pdf.
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stayed the issuance of orders furthering eviction as a result of the CDC’s moratorium, Skyworks
is unable to evict the tenant and regain possession of its property. Id. Appendix A.
The other property-owning/managing plaintiffs are in the same position. Plaintiff
Monarch Investment and Management Group (“Monarch”) manages the assets for Plaintiffs
Toledo Properties Owner B, LLC (d/b/a “Abbey Run”) and Cedarwood Village Apartments I &
II Owner B, LLC (“Cedarwood Village”). On behalf of Abbey Run, Monarch commenced
eviction proceedings against a non-paying tenant in Toledo Municipal Court on September 22,
2020. Declaration of Richard DiBianca ¶ 5, attached hereto as Exhibit B (“DiBianca Decl.”).
However, the tenant presented a Renter’s Declaration at a hearing on October 6, 2020. Id. at ¶ 6.
While the court entered judgment for possession of the property in Abbey Run’s favor, Judge
Howe stayed issuance of the writ through December 31, 2020, because of the CDC Order. Id.
Appendix A. Monarch had a similar issue in Akron Municipal Court when it initiated eviction
proceedings against a non-paying tenant at Cedarwood Village; the court dismissed that action
because the tenant submitted a Renter’s Declaration on October 8, 2020. Declaration of Neal
Cusick, Appendices A and B, attached hereto as Exhibit C (“Cusick Decl.”). And, finally, the
National Association of Home Builders represents over 200 member companies that own and
rent housing units. Declaration of Schwanke ¶ 6, attached hereto as Exhibit D (“Schwanke
Decl.”). Many of those members cannot evict non-paying tenants because the tenants have
invoked the protections of the CDC eviction moratorium. Id. ¶¶ 10, 13. The moratorium thus
forces these and many other landlords throughout the nation to bear the costs of the pandemic
while depriving them of their property rights and the benefits of their lease agreements.
ARGUMENT
A plaintiff seeking a preliminary injunction must show that she is likely to succeed on the
merits, that she is likely to suffer irreparable harm if an injunction is not granted, that the balance
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of equities tips in her favor, and that an injunction is in the public interest. Winter v. Nat’l Res.
Def. Council, 555 U.S. 7, 24 (2008); Certified Restoration Dry Cleaning Network, LLC v. Tenke
Corp., 511 F.3d 535, 542 (6th Cir. 2007); Overstreet v. Lexington-Fayette Urban County Gov’t,
305 F.3d 573 (6th Cir. 2002).
I.
Plaintiffs Are Likely to Succeed on the Merits
A.
The order exceeds the CDC’s statutory and regulatory authority.
Agency actions “must always be grounded in a valid grant of authority from Congress.”
FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 161 (2000). Here, the CDC Order
exceeds the authority granted by 42 U.S.C. § 264 and 42 C.F.R. § 70.2, the statute and regulation
on which the Order relies. These provisions authorize the CDC to do what anyone might expect a
federal disease-prevention-and-control agency to do: prevent and control the interstate spread of
disease by conventional means, such as disinfection, fumigation, and pest extermination. The
laws do not, however, authorize an action as extraordinary and unexpected as a nationwide ban
on evictions.
Section 264(a) authorizes the Secretary of HHS2 to “make and enforce such regulations
as in his judgment are necessary to prevent the introduction, transmission, or spread of
communicable diseases” from foreign countries into the United States or between states. The
statute then elaborates on permissible measures toward that end, stating:
For purposes of carrying out and enforcing such regulations, the [Secretary] may
provide for such inspection, fumigation, disinfection, sanitation, pest
extermination, destruction of animals or articles found to be so infected or
contaminated as to be sources of dangerous infection to human beings, and other
measures, as in his judgment may be necessary.

2 The statute actually authorizes the Surgeon General, with the Secretary’s approval, to issue
relevant regulations, but his authority was transferred to the Secretary in 1966. See
Reorganization Plan No. 3 of 1966, 31 Fed. Reg. 8855 (June 25, 1966). See also 20 U.S.C.
§ 3508.
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42 U.S.C. § 264(a). The regulation, adopted pursuant to section 264(a), largely tracks the
statutory language. It states in full:
Whenever the Director of the Centers for Disease Control and Prevention
determines that the measures taken by health authorities of any State or possession
(including political subdivisions thereof) are insufficient to prevent the spread of
any of the communicable diseases from such State or possession to any other State
or possession, he/she may take such measures to prevent such spread of the diseases
as he/she deems reasonably necessary, including inspection, fumigation,
disinfection, sanitation, pest extermination, and destruction of animals or articles
believed to be sources of infection.
42 C.F.R. § 70.2.
The Secretary, of course, cannot grant the CDC more authority than Congress granted to
him, for an administrative agency “literally has no power to act . . . unless and until Congress
confers power upon it.” Louisiana Pub. Serv. Comm’n v. FCC, 476 U.S. 355, 374 (1986). See
also Brown & Williamson Tobacco Corp., 529 U.S. at 161. The relevant statutory question is
therefore whether the language in either the statute or the regulation that allows the CDC
Director or the Secretary to take measures that are “reasonably necessary” in addition to those
listed in the statute and regulation authorizes the CDC to enact a nationwide eviction
moratorium. The answer is “no.” If it were otherwise, the CDC would possess the authority to
take actions that would render the other measures listed in the regulation and statute—inspection,
disinfection, fumigation, and the like—superfluous. It would also mean the CDC possessed the
breathtakingly broad authority to control virtually any action taken by private parties or state and
local governments that could in some way contribute to the spread of disease. As the Supreme
Court has said in a related context, Congress does not “hide elephants in mouseholes.” Whitman,
531 U.S. at 468. A closer look at the statute and regulation confirm that there are no elephants in
sight.
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1.
The text of the statute and regulation confine the CDC’s action to
conventional, specific disease-prevention measures that do not involve
extensive control over human activity.
Common canons of statutory construction illustrate that the statute and regulation on
which the CDC relies cannot be interpreted broadly enough to authorize a nationwide eviction
moratorium. For example, under ejusdem generis, a general term following an enumerated list is
limited to those things related in kind to the list: “[W]hen a general term follows a specific one,
the general term should be understood as a reference to subjects akin to the one with specific
enumeration.” Ali v. Federal Bureau of Prisons, 552 U.S. 214, 223 (2008) (quoting Norfolk &
Western R. Co. v. Train Dispatchers, 499 U.S. 117, 129 (1991)). The rationale behind the rule is
that “Congress remained focused on the common attribute when it used the catchall phrase.” Id.
at 225. Similarly, under noscitur a sociis, or the associated-words canon, words in a list are
interpreted to have a similar meaning because they are associated in a similar context. See Yates
v. United States, 574 U.S. 528, 544 (2015) (applying both noscitur a sociis and ejusdem generis
in the interpretation of a criminal statute). See also Antonin Scalia & Bryan Garner, Reading
Law: The Interpretation of Legal Texts 199–213, 107–11, 195–98, 93–100, 174–79
(Thompson/West 2012).
The Sixth Circuit has applied these canons to legal provisions that are similar to sections
264(a) and 70.2. For instance, in Owen of Georgia, Inc. v. Shelby County, 648 F.2d 1084 (6th
Cir. 1981), the Sixth Circuit employed the ejusdem generis canon to limit the scope of “good
cause” for rejecting a low bidder on a public project. Under Shelby County law, lowest bidders
were entitled to a contract if they were “financially responsible, taking into consideration the
qualities of the article to be supplied, their conformity to specifications, their suitability to the
requirements of the County government, and the delivery terms.” Id. at 1087–88. The law then
provided a catch-all: “Any and all bids may be rejected for good cause.” Id. The County had
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rejected a low bid because the company was out-of-state and had fewer minority employees than
another low bidder. Id. at 1090. The court, applying ejusdem generis, held “good cause” was
constrained by the factors listed before it: “While a bid may be rejected for reasons other than
those enumerated, the County must cite factors similar to the ones listed, i.e., factors which go to
the heart of the contract.” Id. at 1092.
Similarly, Section 264(a) lists permissible agency actions to prevent disease transmission.
That list offers a window into the kinds of action that Congress envisioned: “inspection,
fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found
to be so infected or contaminated as to be sources of dangerous infection to human beings, and
other measures, as in [the agency’s] judgment may be necessary.” 42 U.S.C. § 264(a). The “other
measures,” under ejusdem generis and noscitur a sociis, are limited to the types of action akin to
the list that precedes it: conventional, localized disease-prevention measures directly aimed at
prevention of interstate transmission, which do not involve substantial control over human
activity. See, e.g., Yates, 574 U.S. at 544 (“‘Tangible object’ is the last in a list of terms that
begins ‘any record [or] document.’ The term is therefore appropriately read to refer, not to any
tangible object, but specifically to the subset of tangible objects involving records and
documents, i.e., objects used to record or preserve information.”); Circuit City Stores, Inc. v.
Adams, 532 U.S. 105, 109, 115 (2001) (“contracts of employment of seamen, railroad
employees, or any other class of workers engaged in foreign or interstate commerce” held to
include only transportation workers in foreign or interstate commerce); McBoyle v. United
States, 283 U.S. 25, 27 (1931) (“automobile, automobile truck, automobile wagon, motor cycle,
or any other self-propelled vehicle not designed for running on rails” held not to apply to an
airplane). The same analysis applies to 42 C.F.R. § 70.2, whose language closely tracks the
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statute. Ejusdem generis and noscitur a sociis thus demonstrate that the CDC has strayed far from
its statutory authority for several reasons.
First, all the measures listed involve conventional disease mitigation measures, such as
the inspection and disinfection of train cars, the fumigation of an airport, or the destruction of
contaminated articles or animals. The statute authorizes what a reasonable person would expect
an organization like the CDC to do. Indeed, legislative history confirms this by noting that the
legislation was intended to sanction “the use of conventional public-health enforcement
methods.” H.R. Rep. No. 78-1364, at 24–25 (1944) (emphasis added). Nothing in the list even
hints at allowing the HHS or the CDC to control the contractual relationships of potentially
millions of Americans, to say nothing of legal processes in every county and municipality in the
nation.
If the statute and regulation authorize such sweeping measures as a nationwide eviction
ban, it is hard to understand what these agencies would not be authorized to do. Almost every
human activity—from gatherings of people, to vacations, to business meetings, to purchasing or
renting of cars, and much more—carries some risk that people will transmit an infectious disease
across state lines. Surely if Congress had meant to grant such sweeping authority to these
agencies, it would have included in the list of measures they are authorized to take something
more than conventional methods for discovering and eliminating disease. Given the nature of the
measures Congress did choose to include in the statute, courts should not conclude that a broad
grant of authority was hidden in general language such as “other measures,” for that would
render the remainder of the statute meaningless surplusage. See Kungys v. United States, 485
U.S. 759, 778 (1988) (Scalia, J., plurality opinion) (stating that under the non-surplusage canon,
“no provision should be construed to be entirely redundant”). See also Yates, 574 U.S. at 546
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(“We typically use ejusdem generis to ensure that a general word will not render specific words
meaningless.”) (quoting CSX Transp., Inc. v. Alabama Dep’t of Revenue, 562 U.S. 277, 295
(2011)).
Second, the list contemplates actions limited to specific sites, objects, or animals that are,
or could be, infected with a disease. Inspection, disinfection, fumigation, sanitation, and pest
extermination all occur at particular locations with limited geographic scope. One does not
sanitize a nation. And the list follows a logical progression, beginning with “inspection,”
indicating that some factual basis for believing that disease is actually present is incorporated
into the actions that follow. This is affirmed by the phrase “found to be so infected or
contaminated as to be sources of dangerous infection.” 42 U.S.C. § 264(a). See also 42 C.F.R.
§ 70.2 (using the phrase “believed to be the sources of infection”). The targeted and fact-based
nature of the items in the list supports the conclusion that Congress’s intent was to authorize
conventional, fact-based disease mitigation strategies, rather than broad, prophylactic measures
that control activities in huge swaths of the nation. Clearly, Congress knows how to enact an
eviction moratorium, as it did so in the CARES Act. Coronavirus Aid, Relief, and Economic
Security (CARES) Act, Pub. L. No. 116-136, § 4024 (2020). Given the limited nature of the
items listed in sections 264(a) and 70.2, it is inconceivable that Congress intended to hide such
sweeping authority in the catch-all phrase “other measures.”
Third, none of the listed items in section 264(a) or 70.2 contemplate substantial control
over human activity or property. Indeed, the only power to restrict human activity in section 264
is contained in separate subsections and involves apprehension and detention of people who pose
a transmission risk on a case-by-case basis. See 42 U.S.C. § 264(b)–(d). And those sections place
careful limitations on HHS’s authority to detain people. For example, the HHS must operate
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pursuant to an executive order, id. § 264(b), and the agency must make specific factual findings
as to the particular person to be detained. Id. § 264(d) (requiring, among other things, a
reasonable belief that an individual is infected and contagious and that the person is or will be
moving state-to-state or is a probable source of infection to individuals who will be moving
state-to-state). Nor do these sections contain a catch-all provision that would leave the scope of
such authority to agency discretion. In short, when Congress gave significant control to the HHS
over the activities of individuals, that authority was limited in scope and the amount of discretion
it gave the agency, and it included significant protections for individual liberty.
Likewise, where Congress gave the HHS the authority to affect an individual’s property
in section 264(a), it limited that authority to circumstances where the facts show a direct threat to
human welfare. Thus, before the agency can undertake the “destruction of animals or articles,” it
must make a finding that the animals or objects are “so infected or contaminated as to be sources
of dangerous infection to human beings.” 42 U.S.C. § 264(a). This finding of high risk to human
health is not required for less intrusive actions, such as disinfection. The reason is easy to infer:
destruction of livestock or goods is likely to have a greater impact on property interests than the
other enumerated actions like fumigation, so such action can only be taken where there is a
clearer risk to human health.
The CDC Order makes no such finding. Instead, the CDC speculates on a broad level that
evictions could lead to homelessness, which could lead to increased risk of transmission, which
might result in someone (someday) crossing a border who might pose a serious risk of infection.
See 85 Fed. Reg. at 55,296 (speculating on “potentially” increased transmission if evictions
“potentially” increase in number). The CDC’s sweeping assault on landlords’ property interests,
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based only on conjecture, clashes with the statute’s demanding standards of individualized
evidence when imposing burdens on property and liberty interests.
Fourth, the statute and regulation authorize actions that are directly connected to
“prevent[ing] the introduction, transmission, or spread of communicable diseases” from foreign
countries or from one state into another. See 42 U.S.C. § 264(a); 42 C.F.R. § 70.2. The authority
granted to the agency does not include regulation of intrastate activity, such as eviction
proceedings, that bear only a tenuous and speculative connection to interstate transmission of
disease. Indeed, the regulation is even more specific in this regard than the statute, as it requires
the CDC Director to act only when he finds that “measures taken by health authorities in any
State or possession . . . are insufficient to prevent the spread of” a communicable disease from
state to state.3 42 C.F.R. § 70.2. The CDC has made no findings about the insufficiency of any
particular state health measures. Instead, the Order simply declares that any state eviction
moratorium with lesser protections than the CDC moratorium is insufficient to prevent the
spread of COVID-19. See 85 Fed. Reg. at 55,294.
If the CDC can regulate wholly intrastate activity like an eviction proceeding on the
speculation that it might prompt an individual to move out of state, then any human activity,
however attenuated, would fall within the CDC’s regulatory crosshairs. This would, in turn,
render both the statute’s and the regulation’s focus on cross-border transmission pointless
surplusage. See United States v. Butler, 297 U.S. 1, 65 (1936) (“These words cannot be

3 The statute’s savings clause affirms this narrower reading of the CDC’s authority by creating a
presumption that the statute should not be interpreted to conflict with state law. See 42 U.S.C.
§ 264(e) (stating that nothing in the section or its implementing regulations “may be construed as
superseding any provision under State law . . . except to the extent that such a provision conflicts
with an exercise of Federal authority under this section”). As noted, nothing on the face of the
statute creates a conflict between the CDC’s authority and state eviction proceedings. It is only
the CDC’s interpretation of its authority that creates such a conflict.
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meaningless, else they would not have been used.”). See also Kungys, 485 U.S. at 778; Yates,
574 U.S. at 546.
The CDC’s action—banning evictions nationwide—is not related in kind to the list of
actions permitted under the statute or regulation. It does not fit within a conventional
understanding of typical disease control measures. It is a sweeping, nationwide action, not
limited to specific hot spots. It is not an action aimed directly at the prevention of disease—
rather, it deals with matters that are several causal steps removed from the spread of disease.
And, unlike the traditional disease mitigation measures listed, the CDC order is a breathtaking
exercise of control over human activity. Given how far removed the CDC’s action is from the list
of activities contemplated by Congress, the CDC order cannot be authorized by the statute.
A federal district court in the Northern District of Georgia recently adopted CDC’s
remarkably broad reading of its authority in the court’s denial of a motion for preliminary
injunction in a similar challenge to the CDC Order. See Brown v. Azar, 1:20-CV-03702-JPB,
2020 WL 6364310 (Oct. 29, 2020). The district court declined to apply canons of construction
like ejusdem generis because “there is no ambiguity to which they could be applied,” because
Congress had demonstrated an “unambiguous intent to delegate broad authority to the CDC to
enter an order such as the one at issue here.” Id. at *9. This conclusion runs contrary to numerous
other canons of statutory construction. For example, if it is true that “other measures”
unambiguously allow the CDC to simply do whatever it thinks best to mitigate transmission,
then the enumerated list preceding “other measures” is mere surplusage, an outcome that courts
are obligated to avoid. See Kungys, 485 U.S. at 778 (“[N]o provision should be construed to be
entirely redundant.”). The court, moreover, ignored important interpretive presumptions that
disfavor the reading proposed by CDC, which are discussed at length below. First, the CDC
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reading of the statute raises serious constitutional concerns, which courts are counseled to avoid
under the longstanding doctrine of constitutional avoidance. See Crowell v. Benson, 285 U.S. 22,
62 (1932). Second, the Supreme Court has long required that Congress speak with clear
statements when meddling with the federal-state balance, and no clear statement to that effect
exists here. See Gregory v. Ashcroft, 501 U.S. 452, 460 (1991).
2.
Interpretive presumptions regarding congressional intent favor a narrow
reading of the statute.
Courts employ a variety of canons of construction to avoid imputing to Congress
intentions that may clash with important policy or legal standards unless Congress has spoken
with a high degree of clarity. These include the federalism canon, the constitutional-avoidance
canon, and the rule of lenity. Here, all three canons favor a reading of the statute that would not
authorize the sweeping power wielded by the CDC.
a.
Congress did not clearly state that it intended to alter the state-federal
balance.
“[I]f Congress intends to alter the usual balance between the States and the Federal
Government, it must make its intention to do so unmistakably clear in the language of the
statute.” Gregory v. Ashcroft, 501 U.S. 452, 460 (1991) (cleaned up). Where a court faces
multiple “plausible interpretations” of a statute, “the proper course [is] to adopt a construction
which maintains the existing balance” between federal and state power “absent a clear indication
of Congress’ intent to change the balance.” Salinas v. United States, 522 U.S. 52, 59 (1997).
In 42 U.S.C. § 264, Congress has said nothing about evictions, much less that HHS or the
CDC may meddle in state property and contract law, longstanding areas of state primacy. See
Robert Van Someren Greve, Protecting Tenants Without Preemption, 25 Geo. J. on Poverty L. &
Pol’y 135, 157 (2017) (“[H]ousing is an area of law traditionally left to the states.”). In addition
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to lacking a clear intent to override state prerogatives in contract and property law, the savings
clause of section 264(e) confirms the opposite intent. See supra note 2.
b.
The CDC’s broad interpretation of its authority would create severe
constitutional concerns.
Courts must prefer a reasonable reading of a statute that avoids serious constitutional
concerns. This “cardinal principle” applies “if a serious doubt of constitutionality is raised,”
requiring the court to “ascertain whether a construction of the statute is fairly possible by which
the question may be avoided.” Crowell v. Benson, 285 U.S. 22, 62 (1932). See Solid Waste
Agency of N. Cook Cty. v. U.S. Army Corps of Engineers, 531 U.S. 159, 174 (2001) (explaining
that when an agency interpretation of a statute raises serious constitutional questions, the
Supreme Court expects to find a “clear statement from Congress” supporting the interpretation).
This canon was recently employed to narrow the neighboring statutory provision in 42 U.S.C.
§ 265, rejecting a “breathtakingly broad” interpretation of the CDC’s authority over non-citizens
because the interpretation “would raise serious constitutional issues.” P.J.E.S. v. Wolf, No. 1:20-
cv-2245 (EGS/GMH), 2020 WL 5793305, at *14 (D.D.C. Sept. 25, 2020).
Here, as discussed above, any reading of the statute that would authorize a nationwide
ban on evictions would place no meaningful limits or guidance on what “other measures” the
CDC might deem necessary to prevent transmission of disease state-to-state. This interpretation
would raise serious constitutional concerns under the non-delegation doctrine, the Commerce
Clause, and the Tenth Amendment.
The non-delegation issue is discussed at length in subsection B, below, but it merits a
summary here. A non-delegation concern arises because a broad reading of the statute leaves it
without any intelligible principle to guide the agency’s discretion. If the statute allows the CDC
eviction moratorium, then it effectively would allow any action that the agency may consider to
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be necessary in its “judgment” to prevent transmission of communicable disease. Since disease
transmission is an ever-present risk, the CDC’s interpretation offers no guidance to the exercise
of agency authority—effectively delegating the legislative power reserved to Congress under
Article I of the Constitution to the HHS and the CDC. The Court should opt for a narrower
reading of the statute to evade the serious constitutional question raised by the CDC’s
interpretation.
For similar reasons, the CDC’s interpretation raises Commerce Clause concerns. While
Congress can regulate economic activity that substantially affects interstate commerce, the
Supreme Court has repeatedly held that the Commerce Clause does not create a federal police
power. See United States v. Lopez, 514 U.S. 549, 567 (1995). Yet section 264(a), if read broadly
enough to allow the CDC to impose an eviction moratorium, would effectively allow the CDC to
adopt any of the measures that state governors and legislatures have adopted to fight the
pandemic—from eviction bans, to business closures, to limits on church and social gatherings. In
short, the statute as interpreted by the CDC would create a federal police power, allowing a
federal agency to control activity on a nationwide basis, however distant its impact on interstate
commerce.
Such a federal police power would likewise run afoul of the Tenth Amendment, which
provides that “powers not delegated to the United States by the Constitution, nor prohibited by it
to the States, are reserved to the States respectively, or to the people.” U.S. Const. amend. X. The
states thus “retain a significant measure of authority to the extent that the Constitution has not
divested them of their original powers and transferred those powers to the Federal Government.”
New York v. United States, 505 U.S. 144, 156 (1992) (cleaned up). The police power is the most
fundamental reservation of all, intended to allow for more accountable and localized exercise of
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authority to watch after the common welfare: “Because the police power is controlled by fifty
different states instead of one national sovereign, the facets of governing that touch on citizens’
daily lives are normally administered by smaller governments closer to the governed.” NFIB v.
Sebelius, 567 U.S. 519, 536 (2012). The statute should not be read to grant the CDC a roving
authority to override the localized model of governance built into our constitutional structure.
Finally, the First Amendment’s Petition Clause provides that “Congress shall make no
law . . . abridging . . . the right of the people . . . to petition the Government for a redress of
grievances.” U.S. Const. amend. I. The Supreme Court has explained that “‘[t]he right of access
to courts for redress of wrongs is an aspect of the First Amendment right to petition the
government.’” Borough of Duryea, Pa. v. Guarnieri, 564 U.S. 379, 387 (2011) (quoting Sure-
Tan, Inc. v. NLRB, 467 U.S. 883, 896–97 (1984)). See also BE & K Constr. Co. v. NLRB, 536
U.S. 516, 525 (2002) (providing a short history of the Court’s jurisprudence concerning the right
to access the courts); California Motor Transp. Co. v. Trucking Unlimited, 404 U.S. 508, 510
(1972) (explaining that “[t]he right of access to the courts is indeed but one aspect of the right of
petition”). The CDC’s interpretation of sections 264(a) and 70.2 halts landlords that have legally
cognizable claims under state law from bringing those claims to their own state courts. Clearly,
the CDC’s interpretation implicates those landlords right to access the courts.
This Court need not even decide the merits of these constitutional questions to apply the
constitutional avoidance doctrine. It suffices that the doubts raised as to the constitutionality of a
particular interpretation are “substantial.” Scalia & Garner, supra § 38 (quoting William K.
Kelley, Avoiding Constitutional Questions as a Three-Branch Problem, 86 Cornell L. Rev. 831,
871 (2001)). The constitutional concerns with a broad reading of the statute are more than
substantial.
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c.
The CDC’s broad interpretation of its authority would violate the rule
of lenity.
The rule of lenity is a “venerable rule” designed to protect citizens from being “held
accountable for a violation of a statute whose commands are uncertain or subjected to
punishment that is not clearly prescribed.” United States v. Santos, 553 U.S. 507, 514 (2008).
The rule therefore requires that “ambiguity concerning the ambit of criminal statutes should be
resolved in favor of lenity.” Yates, 574 U.S. at 528, 544 (quoting Rewis v. United States, 401
U.S. 808, 812 (1971)).
The CDC’s interpretation of sections 264(a) and 70.2 trigger lenity because that
interpretation creates an ambiguity in the statute that HHS or the CDC are then entitled to fill
with whatever measures these agencies believe might prevent the spread of disease. As noted,
above, this would not just be limited to an eviction moratorium, but would cover virtually
anything that might help prevent the spread of COVID-19 or any other disease. Those in the
position of Plaintiffs would face criminal liability based on nothing more than the ad hoc
interpretation of these provisions by the CDC or the HHS. The rule of lenity does not permit
such a flexible and wide-ranging interpretation of criminal laws. As the Supreme Court has
stated, “criminal laws are for courts, not for the Government, to construe.” Abramski v. United
States, 573 U.S. 169, 191 (2014).
B.
If the statute can be read broadly enough to authorize an eviction moratorium,
then it violates the non-delegation doctrine.
Article I of the United States Constitution vests “[a]ll legislative power” in Congress.
U.S. Const. art I, § 1. This assignment implies a “bar on [the legislative power’s] further
delegation.” Gundy v. United States, 139 S. Ct. 2116, 2123 (2019). Statutes that grant too much
discretion to agencies tasked with enforcing them effectively hand the task of lawmaking to the
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agency. Hence, statutes must contain “an intelligible principle to guide the delegee’s use of
discretion.” Id.
Congress can authorize executive officers and agencies to determine facts and can
delegate “the duty to carry out the declared legislative policy.” Panama Refining Co. v. Ryan,
293 U.S. 388, 426 (1935). Congress cannot, however, “[leave] the matter to the [executive]
without standard or rule, to be dealt with as he please[s].” Id. at 418. For instance, in Panama
Refining, the Supreme Court struck down a statute granting the President authority to outlaw the
transportation of excess oil without providing “definition of circumstances and conditions in
which the transportation is to be allowed or prohibited.” Id. at 430. Similarly, in A.L.A Schechter
Poultry Corp. v. United States, 295 U.S. 495, 537–38 (1935), the Court struck down a statute
enabling the President to approve codes of fair competition, leaving him free to “exercise an
unfettered discretion to make whatever laws he thinks may be needed or advisable.”
As noted above, neither section 264(a) nor 70.2 can be read broadly enough to allow the
CDC to impose a nationwide eviction moratorium. But if they can be, then they grant even
broader authority than the statutes in Panama Refining and Schechter. Almost any activity that
causes people to come into close proximity to each other can contribute to the introduction,
transmission, or spread of communicable disease, which, in turn, can then travel easily across
borders. If the CDC’s interpretation is correct, then it has the ability to regulate, control, or
outlaw any such activity, which is to say that the CDC possesses the limitless discretion to make
law concerning any of the wide range of activities that could conceivably lead to the
transmission of disease in the United States. If the CDC is right, the roving power to control
spread of disease is left entirely to the agency’s “judgment.” 42 U.S.C. § 264(a).
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The fathomless scope of the statute under the CDC’s interpretation is exacerbated by the
statute’s failure to define “communicable disease.” See 24 U.S.C. § 264. Communicable
diseases, from the common cold to conjunctivitis, are always with us. Yet the statute does not
limit itself to uncommon or particularly virulent or dangerous diseases. As a result, any activity
that may end up passing the sniffles from one person to another would appear to fit within the
agency’s discretion to regulate.
Further, the statute does not limit the agency’s authority to times of emergency, such as
an outbreak or epidemic. Rather, the agency has authority to limit spread where no clear danger
of a serious epidemic exists. Since the risk of disease transmission never sleeps, the statute
appears to give the agency extraordinary authority to wield however it wants, whenever it wants.
The result is an ever-ready font of power that the CDC may draw from at will.
This reading of the statute goes far beyond determining facts or carrying out an
articulated legislative policy. The statute does not, for instance, give the agency instructions on
what to do should a certain set of circumstances arise, leaving the agency to decide when those
circumstances eventuate. Rather, it fails to limit the factual conditions under which the authority
can be exercised, since transmission of communicable disease is an ever-present risk, and it
offers no guidance on the nature of actions that can be taken when factual conditions are met,
leaving that to the agency’s “judgment.” Id.
Consequently, the statute, under the CDC’s reading, delegates “an unfettered discretion to
make whatever laws [the agency] thinks may be needed or advisable.” Schechter, 295 U.S. at
537–38. The statute would allow the agency to shut down widespread and commonplace activity
at any time, given that communicable disease is always lurking, however small the risk or minor
the disease. The statute’s lack of specific standards by which to guide the agency is all the more
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troubling given the extraordinary scope of power the CDC’s interpretation assumes and the
criminal sanctions the eviction moratorium imposes. See Whitman v. Am. Trucking Ass’ns, Inc.,
531 U.S. 457, 475 (2001) (stating that “the degree of agency discretion that is acceptable varies
according to the scope of the power . . . conferred”); Synar v. United States, 626 F. Supp. 1374,
1386 (D.D.C. 1986) (stating that where the scope of power “increases to immense proportions
(as in Schechter) the standards must be correspondingly more precise”); United States v. Robel,
389 U.S. 258, 275 (1967) (Brennan, J., concurring in the result) (stating that courts should
exercise less tolerance for nebulous grants of power “when the regulation invokes criminal
sanctions and potentially affects fundamental rights”); Midwest Institute of Health v. Governor of
Michigan, No. 161492, slip op. at 29 (Mich. S. Ct. Oct. 2, 2020) (striking down legislative
delegation of emergency powers to a governor in part of because of the breadth of the power
delegated, which granted “power to reorder social life and to limit, if not altogether displace, the
livelihoods of residents across the state and throughout wide-ranging industries”).
C.
The CDC’s eviction moratorium violates the APA’s notice and comment
requirement.
The CDC Order is void because it was issued without a notice and comment period in
violation of the Administrative Procedure Act (APA).4 The Order is unquestionably a “rule”
subject to the APA’s notice and comment requirements because it has the force of law—affecting
the rights and legal relations of people nationwide. See Perez v. Mortg. Bankers Ass’n, 575 U.S.
92, 96 (2015). And the CDC’s choice to label this rule as an “order” is irrelevant. “[C]ourts have
long looked to the contents of the agency’s action, not the agency’s self-serving label, when

4 The APA’s notice and comment requirements serve vital functions. See Citizens to Preserve
Overton Park, Inc. v. Volpe, 401 U.S. 402, 416 (1971); Chrysler Corp. v. Brown, 441 U.S. 281,
302–03 (1979).
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deciding whether statutory notice-and-comment demands apply.” Azar v. Allina Health Servs.,
139 S. Ct. 1804, 1812 (2019).
The CDC cannot issue a rule reshuffling the legal rights of millions of landlords and
tenants without—at the very least—going through notice and comment. Tennessee Hosp. Ass’n
v. Azar, 908 F.3d 1029, 1042 (6th Cir. 2018) (“If an agency attempts to issue a legislative rule
without abiding by the APA’s procedural requirements, the rule is invalid.”). Nonetheless, the
CDC claims that it could bypass notice and comment procedures because it had “good cause.”
The CDC claims that it was impractical to provide a notice and comment because immediate
action was necessary. But this argument is pretextual. See United States v. Cain, 583 F.3d 408,
421 (6th Cir. 2009).
COVID-19 represents a serious public health threat. However, the CDC has known about
COVID-19 since January 2020.5 The CDC’s publication in the Federal Register fails to provide
any justification for why it was suddenly necessary to issue the Order on an “emergency” basis
nine months into this pandemic. The fact is that the CDC had plenty of time to provide a public
notice and comment period.
D.
The CDC’s eviction moratorium is arbitrary and capricious.

The CDC Order should also be set aside under the APA because the decision to issue the
Order was arbitrary and capricious. 5 U.S.C. § 706. First, the CDC asserts that a four-month
nationwide moratorium was necessary because the states and local authorities had taken
inadequate action to prevent the spread of COVID-19. But there is no substantial evidence in the
record supporting that conclusion. See Rogers v. Comm’r of Soc. Sec., 486 F.3d 234, 241 (6th

5 The first confirmed COVID-19 case on American soil was confirmed on January 21, 2020. But
the CDC knew even before then that we were facing a global pandemic. Erin Schumaker,
Timeline: How Coronavirus Got Started, ABC News, https://abcnews.go.com/Health/timeline-
coronavirus-started/story?id=69435165.
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Cir. 2007) (defining “substantial evidence” to mean “more than a scintilla of evidence but less
than a preponderance; it is such relevant evidence as a reasonable mind might accept as adequate
to support a conclusion”). The CDC assumes that in the absence of an evictions moratorium
there will be a wave of evictions that will result in more individuals becoming homeless, and
therein contributing to the spread of COVID-19 among homeless populations. Yet, nothing in the
record establishes that landlords were moving to evict tenants en masse, that those tenants would
become homeless, or that the newly vacant units would not immediately be put to use housing
others in need of a home.
The Order is also arbitrary and capricious because it does not substantially advance the
CDC’s cited public concern. See Burlington Truck Lines v. United States, 371 U.S. 156, 168
(1962) (emphasizing that there must be a “rational connection between the facts found and the
choice made”). On the contrary, the Order may affirmatively undermine the CDC’s cited public
health goals because it is possible that, with a moratorium on evictions in place, landlords may
be more selective in screening out prospective tenants with questionable credit—which would
make it more difficult for low-income individuals to secure housing. But the CDC failed to even
consider this possibility because it failed to consult experts in the field of housing or to solicit
public comment from landlords. See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983) (affirming that agency action is arbitrary and capricious
where the agency fails to consider an important aspect of the problem). And in any event, there is
no way that a four-month moratorium on evictions will do anything meaningful here; if anything,
the Order has just forestalled evictions that would otherwise take place until the dead of winter,
while all indications remain that the COVID-19 pandemic will continue into 2021.
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II.
Without an Injunction, Plaintiffs Will Suffer Irreparable Harm.
The CDC eviction moratorium causes Plaintiffs irreparable harm for three independent
reasons.
First, the eviction moratorium violates the Constitution. Where constitutional claims are
alleged, courts “presume irreparable harm.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 22
(2008). See also Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 1046, 1058 (9th Cir.
2009). Here, the CDC eviction moratorium violates the separation of powers because it amounts
to the CDC making law. As the Supreme Court has made clear, the separation of powers “serves
not only to make Government accountable but also to secure individual liberty.” Boumediene v.
Bush, 553 U.S. 723, 742 (2008). See also Bond v. United States, 564 U.S. 211, 222 (2011)
(recognizing “an injured person’s standing to object to a violation of a constitutional principle
that allocates power within government” where “individuals sustain discrete, justiciable injury
from actions that transgress separation-of-powers limitations”); Free Enterprise Fund v. Public
Co. Accounting Oversight Bd., 561 U.S. 477, 513 (2010) (recognizing parties’ right to ensure
that laws will be enforced only by “a constitutional agency accountable to the Executive” under
Article II); Clinton v. City of New York, 524 U.S. 417, 450 (1998) (Kennedy, J., concurring)
(“Liberty is always at stake when one or more of the branches seek to transgress the separation
of powers.”). The CDC eviction moratorium also interferes with the relationship between the
federal government and the states by imposing criminal liability on Plaintiffs’ use of an entirely
legal method of addressing violations of their lease agreements and property rights. Ohio law
specifically protects the right to access the courts in order to evict tenants and protect property
rights. See Ohio Rev. Code Ann. tit. XIX, Ch. 1923; Ohio Rev. Code Ann. § 5321.03. Yet the
eviction moratorium effectively closes the courthouse door on Plaintiffs, thus preventing them
from redressing the violation of their property and contract rights. See Christopher v. Harbury,
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536 U.S. 403, 413–15 (2002) (holding that a person is denied their right of access to courts
where (1) they have a sound underlying cause of action; and (2) an official action has frustrated
that litigation). Federalism, just as the separation of powers, protects liberty. See Bond, 564 U.S.
at 222.
Second, Plaintiffs face irreparable injury because they cannot regain possession of their
property. Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Capital, Inc., 274 F.3d
1085, 1097 (6th Cir. 2001) (finding that a plaintiff would sustain irreparable injury through loss
of a unique real property, but denying a preliminary injunction on other grounds); see also Girl
Scouts of Manitou Council, Inc. v. Girl Scouts of U.S. of Am., Inc., 549 F.3d 1079, 1090 (7th Cir.
2008) (holding that “[a]s a general rule, interference with the enjoyment or possession of land is
considered ‘irreparable’ since land is viewed as a unique commodity”); Minard Run Oil Co. v.
U.S. Forest Service, 670 F.3d 236, 256 (3d Cir. 2011) (“[W]here ‘interests involving real
property are at stake, preliminary injunctive relief can be particularly appropriate because of the
unique nature of the property interest.’”) (quoting RoDa Drilling Co. v. Siegal, 552 F.3d 1203,
1210 (10th Cir. 2009)); Carpenter Tech. Corp. v. City of Bridgeport, 180 F.3d 93, 97 (2d Cir.
1999) (holding that where loss of real property was at issue, irreparable harm existed); K-Mart
Corp. v. Oriental Plaza, Inc., 875 F.2d 907, 915 (1st Cir. 1989) (finding that damage to real
estate, because of its inherent uniqueness, constituted irreparable harm). The Order affects
Plaintiffs’ property rights by abrogating their right to exclude, a fundamental aspect of property
rights. See Kaiser Aetna v. United States, 444 U.S. 164, 179–80 (1979) (recognizing the right to
exclude as “universally held to be a fundamental element of the property right”). Accordingly,
disallowing possession of one’s property constitutes irreparable injury. See East Tennessee Nat.
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Gas Co. v. Sage, 361 F.3d 808, 828–29 (4th Cir. 2004) (gas company’s inability to immediately
possess condemned property was irreparable harm).
Third, harm is irreparable “when it is shown that the defendant is likely to be insolvent at
the time of judgement.” Performance Unlimited, Inc. v. Questar Publishers, Inc., 52 F.3d 1373,
1382 (6th Cir. 1995). See also Basicomputer Corp. v. Scott, 791 F. Supp. 1280, 1292 (N.D. Ohio
1991), aff’d, 973 F.2d 507 (6th Cir. 1992) (holding that where a defendant may become insolvent
before a final judgment can be collected, harm is irreparable); Economou v. Physicians Weight
Loss Centers of America, 756 F. Supp. 1024, 1038 (N.D. Ohio 1991) (same). Tenants who have
executed Renter’s Declarations and invoked the CDC eviction moratorium are necessarily
insolvent, as they have sworn in their declarations that they cannot make their full rental
payments due to the loss of employment or extraordinary expenses. Thus, by definition,
Plaintiffs will be unable to collect the back payments.
III.
The Public Interest and Balance of Equities Weigh in Plaintiffs’ Favor
It is well settled that the public interest always supports enforcing the Constitution. Deja
Vu of Nashville, Inc. v. Metro. Gov’t of Nashville & Davidson Cty., Tenn., 274 F.3d 377, 400
(6th Cir. 2001) (“[I]t is always in the public interest to prevent violation of a party’s
constitutional rights.”) (quoting G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d
1071, 1079 (6th Cir. 1994)). See also Gordon v. Holder, 721 F.3d 638, 653 (D.C. Cir. 2013)
(“[I]t may be assumed that the Constitution is the ultimate expression of the public interest.”)
(citation omitted); Opulent Life Church v. City of Holly Springs, Miss., 697 F.3d 279, 298 (5th
Cir. 2012) (preliminary injunction issued to protect First Amendment rights). The same basic
principle applies to the balance of equities. See Planned Parenthood Ass’n of Cincinnati, Inc. v.
City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (concluding that, where there is a
likelihood of success on the merits in a case involving a constitutional question, the balance of
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equities favors an injunction because it is “questionable whether [there can be] any ‘valid’
interest in enforcing” an unconstitutional rule); Adams & Boyle, P.C. v. Slatery, 956 F.3d 913,
928 (6th Cir. 2020) (finding that speculative claims about COVID-19 risks cannot outweigh
concrete harms to constitutional liberties). Because this case involves serious questions
concerning the CDC’s statutory and constitutional authority and Plaintiffs have demonstrated a
likelihood of success on the merits, the public interest and the equities weigh in favor of
enjoining the eviction moratorium.
The government will no doubt argue that preventing the spread of disease is within the
public interest and therefore the balance of equities weighs in its favor. While it is true that
preventing disease serves the public interest, it does not follow that foisting the costs of
preventing the spread of disease on a small minority of the public is either equitable or within the
public interest. Indeed, forcing landlords to bear the costs of preventing a public health problem
is the very definition of inequitable. Cf. Armstrong v. United States, 364 U.S. 40, 49 (1960) (The
Fifth Amendment’s Takings Clause “was designed to bar Government from forcing some people
alone to bear public burdens which, in all fairness and justice, should be borne by the public as a
whole.”). Likewise, it is neither equitable nor in the public interest to cut off Plaintiffs’ access to
a legal process for enforcing their rights under state law. Cf. Pike v. Bruce Church, Inc., 397 U.S.
137, 142 (1970) (affirming that state statutes generally serve legitimate public interests for which
federal law must generally respect); Christopher v. Harbury, 536 U.S. 403, 414–15 (2002)
(affirming the right of access to courts for legitimate legal claims). Indeed, a large part of the
reason eviction proceedings exist is to prevent “self-help” and to ensure that individuals can
regain possession of their land through a civil process governed by law. See State ex rel. Pizza v.
Rezcallah, 702 N.E.2d 81, 131 (Ohio 1998) (“[L]andowners are not completely free to act as
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they choose due to landlord-tenant laws and other limitations on self-help evictions.”). By
denying all landlords the right to utilize this process, the CDC has not only abrogated state law, it
has acted contrary to the State of Ohio’s view of what is, in fact, in the public’s interest. 6
CONCLUSION
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be
granted.

6 This Court should also waive any bond requirement, under Rule 65. A district waives the bond
requirement when it concludes there is no realistic likelihood of harm to the defendant based on
the injunction. Johnson v. Couturier, 572 F.3d 1067, 1089 (9th Cir. 2009). See also Moltan Co.
v. Eagle Picher Indus., Inc., 55 F.3d 1171, 1176 (6th Cir. 1995) (holding that “[t]he rule in our
circuit has long been that the district court possesses discretion over whether to require the
posting of security”).
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DATED: November 2, 2020.

Respectfully submitted:

/s/ MAURICE A. THOMPSON
MAURICE A. THOMPSON
(0078548)
1851 Center for Constitutional Law
122 E Main St.
Columbus, OH 43215
Tel: (614) 340-9817
Mthompson@ohioconstitution.org

STEVEN M. SIMPSON*
DC Bar No. 462553
Pacific Legal Foundation
3100 Clarendon Blvd., Suite 610
Arlington, VA 22201
Tel: (202) 888-6881
SSimpson@pacificlegal.org

LUKE A. WAKE*
DC Bar No. 1009181
ETHAN W. BLEVINS*
Washington State Bar No. 48219
HANNAH SELLS MARCLEY*
Washington State Bar No. 52692
Pacific Legal Foundation
930 G Street
Sacramento, CA 95814
Tel: (916) 419-7111
Fax: (916) 419-7747
LWake@pacificlegal.org
EBlevins@pacifclegal.org
HMarcley@pacificlegal.org

*Pro hac vice applications pending

Attorneys for Plaintiffs

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CERTIFICATE OF SERVICE
I certify that on this 2nd day of November, 2020, I served copies of the foregoing on
counsel for all Defendants in this action pursuant to Federal Rule of Civil Procedure
5(b)(2)(C) delivering copies to the U.S. Postal service to be sent by mail to:
Leslie Cooper Vigen
Steven A. Meyers
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: (202) 305-0727
Fax: (202) 616-8470
E-mail: leslie.vigen@usdoj.gov

Counsel for Defendants

By /s/ MAURICE A. THOMPSON
MAURICE A. THOMPSON

Case: 5:20-cv-02407-JRA Doc #: 12 Filed: 11/02/20 40 of 40. PageID #: 116

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Motion for Preliminary Injunction — Skyworks v. CDC

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