Plaintiffs' Reply in Support of Motion for Preliminary Injunction — Skyworks v. CDC

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U.S. District Court for the Northern District of Ohio · No. 5:20-cv-02407-JPC · Doc. 33 · 2020-12-01 · Docket on CourtListener

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Plaintiffs' reply in support of their motion for preliminary injunction in Skyworks, Ltd. v. Centers for Disease Control and Prevention, Case No. 5:20-cv-02407, filed December 1, 2020 as Doc. 33 in the U.S. District Court for the Northern District of Ohio, Eastern Division. The brief argues the CDC eviction moratorium exceeds the agency's statutory authority under 42 U.S.C. § 264(a), violates the non-delegation doctrine, and is a legislative rule subject to notice and comment that was arbitrary and capricious. It further argues the plaintiffs are suffering irreparable harm and that it is never in the public interest for a federal agency to act unlawfully. A footnote states the National Association of Home Builders has established standing through supplemental declarations from two members, attached as Exhibits A and B, and asks the court to grant a nationwide injunction.

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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, 
 
v. 
 
CENTERS FOR DISEASE CONTROL 
AND PREVENTION; ROBERT R. 
REDFIELD, in his official capacity as 
Director, Centers for Disease Control and 
Prevention; NINA B. WITKOFSKY, in her 
official capacity as Acting Chief of Staff, 
Centers for Disease Control and Prevention; 
ALEX AZAR, in his official capacity as 
Secretary of Health and Human Services; 
DEPARTMENT OF HEALTH AND 
HUMAN SERVICES; WILLIAM P. BARR, 
in his official capacity as Attorney General of 
the United States,  
 
Defendants. 
 
 
 
Case No. 5:20-cv-02407-JRA 
 
 
 
JUDGE JOHN R. ADAMS 
 
REPLY IN SUPPORT OF  
PLAINTIFFS’ MOTION FOR PRELIMINARY INJUNCTION
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TABLE OF CONTENTS 
TABLE OF AUTHORITIES .......................................................................................................... ii 
INTRODUCTION .......................................................................................................................... 1 
ARGUMENT .................................................................................................................................. 2 
I. 
THE CDC EVICTION MORATORIUM IS UNLAWFUL ............................................... 2 
A. 
The CDC Order Exceeds Statutory Authority .............................................................. 2 
1. 
Longstanding Canons of Construction Limit CDC’s Discretion .............................. 2 
2.  
The Federalism and Constitutional Avoidance Canons Call for Rejection  
of CDC’s Sweeping Assertion of Power .................................................................. 6 
a. 
The Statute Does Not Contain a Clear Statement that Congress Intended To 
Encroach upon State Prerogatives ......................................................................... 6 
b. 
This Court Should Employ Constitutional Avoidance .......................................... 7 
B. 
The Government’s Interpretation Violates the Non-Delegation Doctrine .................... 8 
C.  
The CDC Order Is a Legislative Rule Subject to Notice and Comment .................... 10 
D.  
The CDC Order Was Arbitrary and Capricious .......................................................... 12 
II.  PLAINTIFFS ARE SUFFERING IRREPARABLE HARM ........................................... 14 
A. 
Plaintiffs Are Suffering Constitutional Injuries ...................................................... 14 
B.  
There Is No Prospect of Collecting Debts from All Insolvent Individuals ............. 16 
C. 
The CDC Abrogated Plaintiffs’ Right To Control Their Property ......................... 18 
III.  IT IS NEVER IN THE PUBLIC INTEREST FOR A FEDERAL AGENCY  
TO ACT LAWLESSLY ................................................................................................... 19 
CONCLUSION ............................................................................................................................. 20 
CERTIFICATE OF SERVICE ..................................................................................................... 21 
 
 
 
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ii 
 
TABLE OF AUTHORITIES 
 
Page(s) 
Cases 
Ali v Fed. Bureau of Prisons, 552 U.S. 214 (2008) .........................................................................4 
Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 
559 F.3d 1046 (9th Cir. 2009) .................................................................................................15 
Brown v. Azar, 
No. 20-3702, 2020 WL 6364310 (N.D. Ga. Oct. 29, 2020) ..........................................5, 18, 19 
Califano v. Yamasaki, 442 U.S. 682 (1979) ....................................................................................1 
Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 
511 F.3d 535 (6th Cir. 2007) ...................................................................................................16 
Chevron, U.S.A., Inc. v. Nat. Resources Defense Council, Inc., 
467 U.S. 837 (1984) ...................................................................................................................6 
Chrysler Corp. v. Brown, 441 U.S. 281 (1979) .............................................................................10 
Circuit City Stores, Inc. v. Adams, 
532 U.S. 105 (2001) ...................................................................................................................6 
Clark v. Martinez, 543 U.S. 371 (2005) ..........................................................................................7 
Deckert v. Indep. Shares Corp., 
311 U.S. 282 (1940) .................................................................................................................18 
Dennis Melancon, Inc. v. City of New Orleans, 
703 F.3d 262 (5th Cir. 2012) ...................................................................................................18 
Dep’t of Homeland Sec. v. Regents of the Univ. of California, 
140 S. Ct. 1891 (2020) .............................................................................................................13 
E. Tennessee Nat. Gas Co. v. Sage, 
361 F.3d 808 (4th Cir. 2004) ...................................................................................................19 
Elmsford Apt. Assoc., LLC v. Cuomo, 
No. 20-4062, 2020 WL 3498456 (S.D.N.Y. June 29, 2020) ...................................................16 
Free Enterprise Fund v. Public Co. Accounting Oversight Bd., 
561 U.S. 477 (2010) .................................................................................................................16 
G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 
23 F.3d 1071 (6th Cir. 2001) ...................................................................................................20 
Gordon v. Holder, 721 F.3d 638 (D.C. Cir. 2013) ........................................................................20 
Gregory v. Ashcroft, 501 U.S. 452 (1991) .......................................................................................6 
Harmon v. Thornburgh, 878 F.2d 484 (D.C. Cir. 1989)..................................................................1 
Home Bldg. & Loan Ass’n v. Blaisdell, 
290 U.S. 398 (1934) .................................................................................................................19 
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Hoxworth v. Blinder, Robinson & Co., 
903 F.2d 186 (3rd Cir. 1990) ...................................................................................................16 
Independent Turtle Farmers of Louisiana, Inc. v. United States, 
703 F.Supp.2d 604 (W.D. La 2010).......................................................................................3, 5 
Industrial Union Department, AFL-CIO v. American Petroleum Institute, 
448 U.S. 607 (1980) .............................................................................................................9, 10 
INS v. Chadha, 462 U.S. 919 (1983) .............................................................................................20 
Kentucky Riverkeeper, Inc. v. Rowlette, 
714 F.3d 402 (6th Cir. 2013) ...................................................................................................13 
Kisor v. Wilkie, 139 S. Ct. 2400 (2019) .................................................................................5, 6, 12 
Louisiana Pub. Serv. Comm’n v. F.C.C., 
476 U.S. 355 (1986) ...........................................................................................................14, 15 
Marshall v. United States, 414 U.S. 417 (1974) ..........................................................................3, 4 
Meister v. U.S. Dep’t of Agriculture, 
623 F.3d 363 (6th Cir. 2010) ...................................................................................................12 
Melendres v. Arpaio, 
695 F.3d 990 (9th Cir. 2012) ...................................................................................................15 
Minard Run Oil Co. v. U.S. Forest Serv., 
670 F.3d 236 (3d Cir. 2011)...............................................................................................18, 19 
Morales v. Trans World Airlines, Inc., 
504 U.S. 374 (1992) .................................................................................................................15 
Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto, 
463 U.S. 29 (1983) .............................................................................................................13, 14 
New York Times v. Sullivan, 376 U.S. 254 (1964) .........................................................................16 
Ohio Coal Ass’n v. Perez, 
192 F.Supp.3d 882 (S.D. Ohio 2016) ......................................................................................10 
PDR Network LLC v. Carlton & Harris Chiropractic, Inc., 
139 S. Ct. 2051 (2019) .............................................................................................................11 
Perez v. Mortg. Bankers Ass’n, 
575 U.S. 92 (2015) ...................................................................................................................10 
Performance Unlimited, Inc. v. Questar Publishers, Inc., 
52 F.3d 1373 (6th Cir. 1995) ...................................................................................................17 
Planned Parenthood Ass’n of Cincinnati, Inc. v. City of Cincinnati, 
822 F.2d 1390 (6th Cir. 1987) .................................................................................................15 
Roda Drilling Co. v. Siegal, 
552 F.3d 1203 (10th Cir. 2009) ...............................................................................................19 
Roland Mach. Co. v. Dresser Indus., Inc., 
749 F.2d 380 (7th Cir. 1984) ...................................................................................................17 
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Roman Catholic Diocese of Brooklyn v. Cuomo, 
No. 20A87, 2020 WL 6948354 (U.S. Nov. 25, 2020) .........................................................1, 19 
Texas v. United States, 809 F.3d 134 (5th Cir. 2015) ......................................................................2 
Touby v. United States, 500 U.S. 160 (1991) ...................................................................................9 
United States v. Cain, 583 F.3d 408 (6th Cir. 2009) .....................................................................12 
United States v. Lopez, 514 U.S. 549 (1995) ...................................................................................7 
Utility Air Regulatory Grp. v. EPA, 
573 U.S. 302 (2014) ...................................................................................................................2 
Valley v. Rapides Parish Sch. Bd., 
118 F.3d 1047 (5th Cir. 1997) .................................................................................................15 
Washington v. Reno, 
35 F.3d 1093 (6th Cir. 1994) .....................................................................................................2 
Whitman v. Am. Trucking Ass’ns, Inc., 
531 U.S. 457 (2001) .........................................................................................................8, 9, 10 
Winter v. Nat. Res. Def. Council, Inc., 
555 U.S. 7 (2008) .....................................................................................................................15 
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Capital, Inc., 
274 F.3d 1085 (6th Cir. 2001) .................................................................................................18 
Yates v. United States, 574 U.S. 528 (2015) ....................................................................................6 
Statutes 
42 U.S.C. § 264(a) ................................................................................................................. passim 
42 U.S.C. § 264(b) ...........................................................................................................................3 
Other Authorities 
42 C.F.R. § 70.2 .....................................................................................................................3, 4, 11 
Const. Art. I, § 1.............................................................................................................................12 
Wright & Miller, Fed. Pract. & Proc. § 2948.1 (3d ed. 2018) ......................................................15 
 
 
 
 
 
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INTRODUCTION 
The Center for Disease Control and Prevention (CDC) has assumed the power to 
criminalize eviction proceedings throughout the nation. It asserts this power under a statute that 
authorizes the Department of Health and Human Services (HHS) and the CDC to take what 
Congress referred to as “ordinary disease control measures.” The Government admits that the 
implication of the CDC’s extraordinary assumption of power is that the CDC may control any 
human activity that could conceivably contribute to the spread of disease in America. And the 
CDC may exercise such authority, according to the Government, through the mere stroke of a 
bureaucratic pen, without even following the APA’s notice and comment rulemaking procedures.  
This is not how lawmaking is supposed to be done under a Constitution that limits the 
power of the federal government and assigns to Congress the power to make law and to the 
executive branch the power only to enforce it. It is not even how rulemaking is supposed to be 
done under the APA, which was designed to ensure that administrative agencies, in wielding their 
vast power, at least give notice of the rules Americans must follow in advance and allow them an 
opportunity for input. “[E]ven in a pandemic, the Constitution cannot be put away and forgotten.” 
Roman Catholic Diocese of Brooklyn v. Cuomo, No. 20A87, 2020 WL 6948354, at *3 (U.S. Nov. 
25, 2020). This Court should enjoin the CDC’s breathtaking exercise of authority it does not 
possess.1 
 
1 National Association of Home Builders (NAHB) has established standing with supplemental 
declarations from two members who attest that they have non-paying tenants (outside Ohio) who 
they would evict but for CDC’s Order. See Declaration of Lance A. Swank, ¶¶ 4, 7, 10-12, attached 
as Exhibit A; Declaration of Kenneth J. Lawler, ¶¶ 4-5, attached as Exhibit B. Because NAHB’s 
membership expands nationwide, this Court should grant a nationwide injunction. See Califano v. 
Yamasaki, 442 U.S. 682, 705 (1979) (“[T]he scope of injunctive relief is dictated by the extent of 
the violation established, not by the geographical extent of the plaintiff class.”); Harmon v. 
Thornburgh, 878 F.2d 484, 495 n.21 (D.C. Cir. 1989) (“When a reviewing court determines that 
 
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ARGUMENT 
I. 
THE CDC EVICTION MORATORIUM IS UNLAWFUL 
A. 
The CDC Order Exceeds Statutory Authority 
1. 
Longstanding Canons of Construction Limit CDC’s Discretion  
The CDC lacks authority to impose regulations that involve measures unrelated to 
“inspection, fumigation, disinfection, sanitation, pest extermination, [or] destruction of animals or 
articles.” 42 U.S.C. § 264(a). The Order does not resemble the actions in the enumerated list. 
The Government emphasizes the sentence before this list, which authorizes the agency “to 
make and enforce such regulations as in [its] judgment are necessary to prevent the introduction, 
transmission, or spread of communicable diseases” into or among the states. 42 U.S.C. § 264(a); 
Defendants’ Mem. in Opp. to Pls.’ Motion for Prelim. Inj. 15, ECF No. 23 (“Opp. Br.”). According 
to the Government, the term “judgment” exhibits deference to the agency. But that first sentence 
must be read in context. See Utility Air Regulatory Grp. v. EPA, 573 U.S. 302, 321 (2014). The 
limits imposed on the agency in the second sentence relate back to the grant of power in the first 
sentence. The first sentence deals with the regulations that the agency can promulgate, while the 
second sentence deals with the measures that the agency may take in furtherance of those 
regulations. The types of measures that can be taken inform the types of regulations the agency 
may pursue. If, as the Government suggests, the enumerated list has no bearing on regulations that 
the CDC can impose, then the list is meaningless. The CDC Order is a prime example. How will 
fumigation, disinfection, sanitation, or destruction of infected animals help the CDC further the 
 
agency regulations are unlawful, the ordinary result is that the rules are vacated—not that their 
application to the individual petitioners is proscribed.”). See also Washington v. Reno, 35 F.3d 
1093, 1103-04 (6th Cir. 1994) (affirming that District Courts enjoy broad discretion in fashioning 
injunctive relief); Texas v. United States, 809 F.3d 134, 188 (5th Cir. 2015) (“It is not beyond the 
power of a court, in appropriate circumstances, to issue a nationwide injunction.”). 
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eviction moratorium? If the sentence regarding measures of enforcement is to have any meaning, 
it must relate back to the types of regulations that would require those kinds of measures as an 
effective means of administering the regulation. 
Moreover, if at all lawful, the agency’s Order must stem from the authority granted from 
the second sentence of Section 264(a) because the Government insists that the Order is not a 
regulation, but rather a measure taken to further regulation 42 C.F.R. § 70.2. See Opp. Br. at 31. 
Thus, the CDC Order is subject to the more limited authority granted in the second sentence of 
Section 264, not the first sentence authorizing the agency to adopt regulations. This is one among 
several reasons why Independent Turtle Farmers of Louisiana, Inc. v. United States, 703 
F.Supp.2d 604 (W.D. La 2010), which the Government relies on, is inapposite; that case was a 
legal challenge to a regulation promulgated on the authority of the first sentence of 42 U.S.C. § 
264(a), not a measure taken under the second sentence. 
The agency also argues that subsection (a) of 42 U.S.C. § 264 must be read broadly because 
subsection (b) contemplates detention of individuals as a permissible measure, which is not akin 
to the enumerated list. But it is not subsection (a) that authorizes detention—that is what subsection 
(b) does. Subsection (b) states that the statute does not allow for detention except under 
circumstances established in subsection (b). 42 U.S.C. § 264(b). Thus, subsection (b) creates the 
power to detain, and the phrasing makes clear that the preceding subsection contemplates no such 
power.  
The Government also asks this Court to relax its interpretive rigor because this statute 
touches upon an area “fraught with medical and scientific uncertainties.” Opp. Br. at 17 (quoting 
Marshall v. United States, 414 U.S. 417, 427 (1974)). The case the Government cites for this 
proposition, Marshall v. United States, did not instruct courts to read technical statutes broadly. 
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Rather, the case stated the age-old rule that judges should not second-guess the reasonableness of 
legislative line-drawing. Id. at 427-28. 
The Government argues that the ejusdem generis canon does not apply. The Government 
points out that, in 42 C.F.R. § 70.2, the enumerated list comes after the catch-all phrase, arguing 
that the canon only applies where the catch-all phrase comes after the enumerated list. Opp. Br. at 
20. But the statute’s structure is the reverse: the catch-all follows the enumerated list, which is 
precisely the circumstance where ejusdem generis applies. See Ali v Fed. Bureau of Prisons, 552 
U.S. 214, 223 (2008). To the extent that the regulation avoids ejusdem generis by reversing this 
order, it exceeds the scope of authority granted by the statute, and the Government has never asked 
this Court to defer to the regulation’s interpretation of the statute. 
The Government then argues that, even if ejusdem generis applies, the eviction moratorium 
is “not so different” from the enumerated list. Opp. Br. at 22. The Government artificially narrows 
the common attributes in the list, focusing on the notion that each action involves some property 
intrusion. Id. But the Government fails to acknowledge that the statute imposes additional limits 
where the restrictions on property are heightened. Thus, for instance, the statute only allows for 
outright destruction of property if the agency makes an express finding that the particular property 
at issue poses a substantial health risk. See 42 U.S.C. § 264(a). These requirements are not imposed 
for lesser intrusions, such as fumigation. The CDC Order does not make any particularized finding 
for the individual properties subject to the Order. 
Further, the Government ignores other common attributes in the enumerated list, such as 
conventional methods of disease prevention and localized actions that take place at specific sites 
and directly mitigate spread of disease. The list, moreover, does not involve actions that curtail or 
control human behavior or that bar people from exercising rights granted by their respective states. 
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The CDC Order differs on each of these common attributes: it is unconventional (indeed, 
unprecedented), it is a nationwide rather than localized effort, it does not just act on a particular 
piece of property but limits human action by preventing landlords from going through the eviction 
process, and it only strikes at disease indirectly, by potentially preventing homelessness, which 
could potentially lead to more congregating, which could potentially lead to transmission, which 
could potentially cross a border. The CDC Order is much less akin to the enumerated list than the 
agency regulation in Independent Turtle Farmers, 703 F.Supp.2d 604 (W.D. La. 2010). There, the 
regulation banning sale of pet turtles due to salmonella risks did not abrogate a pre-existing 
statutory right, did not thwart rights in real property, did not meddle with a massive swath of 
American economic life, and was closely related to destruction of infected animals. 
The Government also points to a recent federal district court ruling rejecting statutory 
arguments similar to those raised by Plaintiffs here. See Brown v. Azar, No. 20-3702, 2020 WL 
6364310 (N.D. Ga. Oct. 29, 2020). But the district court made several key interpretive errors. First, 
the court made the same error mentioned above—assuming that subsection (a) authorizes detention 
when it does not. Id. at *8. Second, the court dismissed the enumerated list, citing a case that states 
“[t]he word include does not ordinarily introduce an exhaustive list.” Id. (quoting United States v. 
Hastie, 854 F.3d 1298, 1304 (11th Cir. 2017)). But no one is arguing that the enumerated list is 
exhaustive, only that it guides the meaning of “other measures.” Moreover, the word “include” 
does not appear in the statute.  
Finally, the district court erred in holding that ejusdem generis and similar canons do not 
apply because the statute is not ambiguous. Id. at *9. Yet a court can only conclude a statute is 
ambiguous after employing the traditional canons of construction. See Kisor v. Wilkie, 139 S. Ct. 
2400, 2414 (2019) (noting that, for both rules and statutes, ambiguity only arises “after a court has 
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resorted to all the standard tools of interpretation.”) (emphasis added); id. at 2415 (“before 
concluding that a rule is genuinely ambiguous, a court must exhaust all the ‘traditional tools’ of 
construction.”); Chevron, U.S.A., Inc. v. Nat. Resources Defense Council, Inc., 467 U.S. 837, 843 
n.9 (1984) (a statute is not ambiguous “[i]f a court, employing traditional tools of statutory 
construction, ascertains that Congress had an intention on the precise question at issue”). See also, 
e.g., Yates v. United States, 574 U.S. 528, 537 (2015) (applying ejusdem generis before 
determining whether the text was ambiguous); Circuit City Stores, Inc. v. Adams, 532 U.S. 105, 
114-20 (2001) (same). Hence, the court erred in declining to apply these canons. 
2.  
The Federalism and Constitutional Avoidance Canons Call for Rejection of 
CDC’s Sweeping Assertion of Power 
a. The Statute Does Not Contain a Clear Statement that Congress Intended To 
Encroach upon State Prerogatives 
Federal courts presume that Congress did not intend to step into traditional areas of state 
concern unless Congress says so in unmistakably clear terms. See Gregory v. Ashcroft, 501 U.S. 
452, 460 (1991). Here, the statute states that the CDC may prevent disease through conventional 
disease control measures. There is not a whisper about congressional intent to exercise control 
over state court proceedings or state landlord-tenant law. 
The Government points out that federal law preempts state law, which has no bearing on 
the federalism canon. Indeed, federal preemption is one reason courts hesitate to interpret uncertain 
language as overriding state prerogatives. The Government also points out that the federal 
government has often regulated the rental industry in the past. Once again, this point has no bearing 
on whether this statute presents a clear intent to do so, except to the extent that it shows that 
Congress knows how to legislate in the rental industry, only reaffirming that Congress can be clear 
about its intentions. 
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The Government next argues that a federal order barring landlords from accessing state 
court proceedings does not actually alter the federal-state balance. But there is no question that 
Plaintiffs in this matter, as well as landlords across the country, would be able to avail themselves 
of state statutory remedies but for the CDC Order. Moreover, the Government implies that it has 
authority to engage in the police power actions that states have taken during the pandemic, such 
as stay-at-home orders and business closures. See Opp. Br. at 22. The Government cannot claim 
to arrogate to itself a federal police power while disclaiming any intent to step on state authority. 
See United States v. Lopez, 514 U.S. 549, 567-68 (1995). 
b. This Court Should Employ Constitutional Avoidance 
The Government urges this Court to ignore the constitutional avoidance canon because the 
statute is not ambiguous. But the canon applies so long as there is more than one plausible reading 
of the statute. Clark v. Martinez, 543 U.S. 371, 380-81 (2005). Plaintiffs need not rehash the 
interpretive analysis to demonstrate that the statute has a plausible reading that avoids 
constitutional issues.  
 Non-delegation concerns are discussed below. The Government dismisses Commerce 
Clause concerns by misconstruing what the Order regulates. The Order only regulates a landlord’s 
access to a state court proceeding, not the general commercial activity of renting property. 
Moreover, it bears repeating that the Government frankly admits that it believes the statute gives 
it the power to adopt any measures that states have taken pursuant to their police powers, Opp. Br. 
at 22, indicating that the Government’s view of the statute gives it the very federal police power 
that the Supreme Court has consistently rejected as within the ambit of the Commerce Clause. See 
Lopez, 514 U.S. at 567. 
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B. 
The Government’s Interpretation Violates the Non-Delegation Doctrine 
The Government contends that the statute grants it the sweeping authority to ban evictions 
across the nation. The Government points to three supposed intelligible principles: (1) the 
requirement that CDC action be geared toward preventing communicable disease; (2) that such 
action be judged necessary by the CDC; and (3) that the CDC condition its actions on a finding 
that state actions are insufficient. Opp. Br. at 29-30. 
The statute’s authorization for the CDC to prevent spread of disease is not an intelligible 
principle. This only establishes the subject matter area in which the agency can regulate. As 
Plaintiffs explained in their memorandum, any human interaction involves a risk that an illness 
might spread. Hence, aside perhaps from long-distance communication, all human interactions are 
within the scope of this mandate. 
The requirement that such action be deemed “necessary” based on the agency’s “judgment” 
is likewise no intelligible principle. The use of the word “judgment” is telling—the determination 
of necessity sits entirely within the agency’s discretion, and it may consider whatever factors and 
weigh whatever considerations it deems relevant to that determination. No statutory criteria exist 
to guide the agency’s necessity determination. 
The Government also points to the requirement in the regulation that the CDC may only 
act where it deems state action to be insufficient. But limits imposed by regulation are irrelevant 
to the non-delegation analysis, which focuses on what the legislature authorized the agency to do, 
not what limits the agency voluntarily imposed on itself: “Whether the statute delegates legislative 
power is a question for the courts, and an agency’s voluntary self-denial has no bearing upon the 
answer.” Whitman v. Am. Trucking Ass’ns, Inc., 531 U.S. 457, 473 (2001). 
The Government relies on cases that only demonstrate the distance between the statute as 
understood by the CDC and the statutes upheld in the cited cases. In Whitman, for instance, the 
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Supreme Court upheld EPA authority to set national ambient air quality standards. But the 
agency’s determination of what was “requisite” for air quality standards had to be based on 
statutory air quality criteria reflecting the latest scientific knowledge. Id. at 473. No similar 
statutory criteria must be considered in determining what is “necessary” under 42 U.S.C. § 264(a).  
Moreover, Whitman recognized that “the degree of agency discretion that is acceptable 
varies according to the scope of the power congressionally conferred.” Id. Setting air quality 
standards involved “judgments of degree” somewhere along a single public safety continuum. Id. 
at 475. By contrast, the CDC claims a broad, roving authority to alter the very substance of 
American life and restrict any activity that could risk disease transmission, including through stay-
at-home orders and business closures. Opp. Br. at 22. 
The other cases relied on by the Government involve statutes that, like the statute in 
Whitman, impose statutory criteria on the agency’s determination of necessity and involve a much 
narrower scope of power. For example, in Touby v. United States, 500 U.S. 160, 166 (1991), the 
Attorney General had authority to temporarily mark drugs as controlled substances if he found it 
“necessary to avoid an imminent hazard to the public safety.” But in making that determination, 
the Attorney General had to consider three factors: pattern of abuse, severity of abuse, and risk to 
public health. Id. These statutory factors limited the Attorney General’s discretion, and his 
authority was relatively narrow in scope: he could only temporarily insert specific substances into 
a pre-existing statutory regime. No similar temporal or subject-matter limit exists with respect to 
the CDC’s claimed authority. 
Again, in Industrial Union Department, AFL-CIO v. American Petroleum Institute, 448 
U.S. 607 (1980), the Occupational Safety and Health Act gave OSHA power to set standards for 
toxic materials, but constrained that discretion by imposing a feasibility standard, a cost-benefit 
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analysis, a required finding of “significant risk,” and a “best available evidence” standard. Id. at 
644-45. Indeed, the Court in Industrial Union rejected a broad reading of the statute that would 
not require the agency to quantify the public safety risk because such a reading would pose a 
serious non-delegation problem. Id. at 646. The Court refused to give the agency “the 
unprecedented power over American industry that would result from the government’s view.” Id. 
at 645. This Court should likewise reject the Government’s view that would give the CDC not only 
unprecedented power over American industry, but power even to dictate American social life with 
as much discretion as any state legislature. 
The statute at issue here, as understood by the Government, imposes none of the constraints 
that the Court considered important in the cited cases. There is no feasibility standard, no 
“significant risk” requirement, no list of statutory criteria to consider, no cost-benefit analysis, no 
“best available science” standard. And the scope of the power CDC seeks is broader than the 
statutes in the above cases. One could paraphrase Whitman as follows: “[42 U.S.C. § 264(a)] has 
conferred authority to regulate the entire economy on the basis of no more precise a standard than 
[preventing transmission of disease that the agency deems “necessary” based on its own 
unencumbered “judgment”].” Whitman, 531 U.S. at 474. 
C.  The CDC Order Is a Legislative Rule Subject to Notice-and-Comment  
The APA’s notice and comment requirement serves the vital functions of accountability 
and transparency.2 Perez v. Mortg. Bankers Ass’n, 575 U.S. 92, 96 (2015). It ensures that those 
affected by agency actions will have a meaningful opportunity to participate in the process. See 
Chrysler Corp. v. Brown, 441 U.S. 281, 302-303 (1979). The CDC’s eviction moratorium 
 
2 It bears emphasis that the injury suffered with a notice-and-comment violation is in the regulatory 
burden of complying with an improperly promulgated rule. See Ohio Coal Ass’n v. Perez, 192 
F.Supp.3d 882, 903 (S.D. Ohio 2016) (recognizing the compliance costs as the relevant injury) 
(citing Iowa League of Cities v. E.P.A., 711 F.3d 844, 870-71 (8th Cir. 2013)). 
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unquestionably fits the definition of a legislative rule, as it is a statement of general applicability 
that carries the force of law and affects the rights of potentially millions of Americans. See PDR 
Network LLC v. Carlton & Harris Chiropractic, Inc., 139 S. Ct. 2051, 2055 (2019). And it does 
not fit the narrower definition of an “order” because it is not an individualized directive that merely 
applies a general rule. See id. (recognizing that an FCC pronouncement interpreting the Telephone 
Consumer Protection Act constitutes a rule for the purposes of the APA, even as it was deemed an 
order for the purposes of the Hobbs Act). 
The Government’s only response is that it would be odd if the CDC had to follow notice 
and comment rulemaking every time it issued an order under Section 70.2. Opp. Br. at 31. Indeed, 
that would be odd if the subject were fumigating railcars or banning infected turtles or some other 
action clearly contemplated by Section 264(a) or 70.2. But it is far from odd to expect an agency 
to follow notice and comment rulemaking when it is altering the rights of millions and 
criminalizing a legal process available in every state. The Government’s point only emphasizes 
that Congress could not have intended to give HHS or CDC the sweeping authority they have 
claimed. When Congress passed an eviction moratorium in the CARES Act, it did so in the light 
of day through the normal lawmaking process. If the CDC can accomplish the same thing behind 
closed doors with a bureaucratic stroke of the pen, then the APA’s notice and comment procedures 
(to say nothing of Congress’s lawmaking authority) is a dead letter. 
The existence of the CARES Act eviction moratorium also serves as a rejoinder to the 
Government’s claim that following notice and comment rulemaking would have been 
impracticable. Opp. Br. at 31-32. Congress knew early in the pandemic that evictions were likely 
and managed to adopt a moratorium on March 27, 2020, that was set to expire in July. The CDC 
knew all this, yet it claims that it could only act on an “emergency” basis in late August. This is 
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not a credible reason to ignore notice and comment. See United States v. Cain, 583 F.3d 408, 421-
22 (6th Cir. 2009) (stressing that an agency cannot “unreasonably delay[] taking action” and then 
claim to have “good cause” for forgoing notice-and-comment procedures). Nor can the expiration 
of the CARES Act moratorium constitute an “emergency.” That was a legislative choice, 
exclusively within Congress’ power to make. See Const. Art. I, § 1. If legislative choices were an 
excuse to ignore notice and comment requirements, agencies could concoct emergencies out of the 
expiration of virtually any law.  
D.  The CDC Order Was Arbitrary and Capricious  
By its own account, the CDC rushed to issue the eviction moratorium. Opp. Br. at 32. In 
its haste, the CDC neglected to engage in the sort of thorough and deliberative analysis that we 
should expect for a “major rule.” 85 Fed. Reg. at 55,296. For that matter, the Government 
acknowledges that the CDC’s Order is predicated upon speculative assumptions. Opp. Br. at 32-
33 (claiming that deference is owed when an agency makes predictions). But no deference is owed 
to unsupported factual assertions, especially where an agency lacks special expertise. See Meister 
v. U.S. Dep’t of Agriculture, 623 F.3d 363, 373-74 (6th Cir. 2010) (finding agency action arbitrary 
where the U.S. Forest Service failed to establish a firm basis for its estimates of snowmobile 
visitors in a national forest, or to think through the implications of its failure to provide estimates 
on cross-country visitors). Cf. Kisor, 139 S. Ct. at 2417 (deference is inappropriate if the agency 
lacks special expertise). Here the Government stresses that the CDC relied on a finding that “30-
40 million people in America could be at risk of eviction.” 85 Fed. Reg. at 55,295 & n.17 (emphasis 
added). Granted, some non-paying tenants would face eviction in the absence of a nationwide 
moratorium; however, the Government has failed to identify anything in the record demonstrating 
that mass evictions were likely. The Government responds that the CDC could not be expected to 
“obtain[] the unobtainable.” Opp. Br. at 33. Yet if the CDC had proceeded in a reasoned and 
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deliberative rulemaking process it would have engaged in comparative analysis between states 
with eviction moratoria and those without. In failing to do so, the CDC “failed to consider an 
important aspect of the problem . . .” Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. 
Auto, 463 U.S. 29, 43 (1983); see also Dep’t of Homeland Sec. v. Regents of the Univ. of 
California, 140 S. Ct. 1891, 1912, (2020) (holding that the Attorney General failed to sufficiently 
explain a change in policy). 
Further, the Government argues that there was no need to consider whether the eviction 
moratorium might make it more difficult for individuals with poor credit to secure housing 
because—while the CDC’s public health goal was to enable people to shelter in place—it sought 
only to enable individuals to stay “where they already live . . .” Opp. Br. at 33. If so, then the CDC 
“failed to consider an important part of the problem.” Kentucky Riverkeeper, Inc. v. Rowlette, 714 
F.3d 402 (6th Cir. 2013) (quoting Nat’l Ass’n of Home Builders v. Defenders of Wildlife, 551 U.S. 
644, 658 (2007)). Whether because a lease expires or because an individual seeks to relocate to 
pursue a new job, people must inevitably seek out new housing—even during a pandemic. What 
is more, had the CDC provided a comment period it would have learned that an eviction 
moratorium would prompt some landlords to exit the rental market entirely, therein “limit[ing] the 
availability of rental units for everyone.” See Br. Amici Curiae, National Apartment Association, 
et al., 5:20-cv-02407-JRA, Doc. 20, 12-14 (Nov. 17, 2020).  
Lastly, the Government argues that it is within the discretion of the CDC’s “expert 
judgment” to craft an eviction moratorium in whatever manner the agency deems fit. Opp. Br. at 
33-34. But whatever latitude the CDC might have in making regulatory decisions, the Government 
acknowledges that the APA forbids agencies from making decisions that “run[] counter to the 
evidence before the agency . . .” Rowlette, 714 F.3d at 407. Here the Government has failed to 
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reconcile the facts that the CDC relied upon with its decision to issue the temporary halt in 
evictions. The Order contemplated that a moratorium was necessary to prevent evictions through 
the colder months and during the flu season. 85 Fed. Reg. at 55,296. Yet, without explanation, the 
CDC set its moratorium to expire during the height of flu season and during the first month of 
winter.3 Motor Vehicle Mfrs., 463 U.S. at 48 (stressing “an agency must cogently explain why it 
has exercised its discretion in a given manner.”); infra at 43 (emphasizing that an agency must 
sufficiently “examine the relevant data . . .”).  
II.  
PLAINTIFFS ARE SUFFERING IRREPARABLE HARM 
A. Plaintiffs Are Suffering Constitutional Injuries  
The CDC has asserted the power to alter the contractual rights of landlords throughout the 
nation and to criminalize an entirely legal means of protecting those rights under state law. As 
Plaintiffs have demonstrated above, the CDC does not possess that breathtaking authority. The 
Government characterizes this as a mere statutory dispute and contends, on that basis, that even if 
Plaintiffs are correct, they cannot show that the CDC’s illicit assumption of power causes them 
irreparable harm. Opp. Br. at 10-11. But the CDC has not merely violated a statute, it has usurped 
Congress’ power to make law. As the Supreme Court has made clear, “an agency literally has no 
power to act, let alone pre-empt the validly enacted legislation of a sovereign State, unless and 
until Congress confers power upon it.” Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 355, 
374-75 (1986). Where an agency acts without Congressional authorization it necessarily violates 
the Constitution, for “[a]n agency may not confer power upon itself. To permit an agency to expand 
 
3 The Government’s only response is that it might extend the moratorium at its discretion. But 
viewed together with CDC’s snap judgment to issue the Order in September—without even 
enough time for a 30-day public comment period—and its assertion that it may consider extensions 
without setting forth a framework for that analysis, CDC’s “touch and go” approach is 
unpredictable and arbitrary on the whole. 
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its power in the face of a congressional limitation on its jurisdiction would be to grant to the 
agency power to override Congress.” Id. And granting an agency the power to override Congress 
would be a clear violation of the separation of powers. 
“It is well established that the deprivation of constitutional rights ‘unquestionably 
constitutes irreparable injury.’”4 Melendres v. Arpaio, 695 F.3d 990, 1002 (9th Cir. 2012) (quoting 
Elrod v. Burns, 427 U.S. 347, 373 (1976)). See also 11A Wright & Miller, Fed. Pract. & Proc. 
§ 2948.1 (3d ed. 2018) (“When an alleged deprivation of a constitutional right is involved … most 
courts hold that no further showing of irreparable injury is necessary.”). According to the 
Government, this principle applies only where First Amendment rights or the right to privacy are 
at stake. Opp. Br. at 11. But this is not so. See, e.g., Planned Parenthood Ass’n of Cincinnati, Inc. 
v. City of Cincinnati, 822 F.2d 1390, 1400 (6th Cir. 1987) (finding that a likely due process 
violation effected irreparable harm); Am. Trucking Ass’ns, Inc. v. City of Los Angeles, 559 F.3d 
1046, 1058 (9th Cir. 2009) (finding Dormant Commerce Clause and Supremacy Clause violations 
caused irreparable harm); Melendres, 695 F.3d at 1002 (finding violation of Fourth Amendment 
rights constitutes irreparable harm); Valley v. Rapides Parish Sch. Bd., 118 F.3d 1047, 1055-56 
(5th Cir. 1997) (violation of due process rights constitutes irreparable harm). See also Morales v. 
Trans World Airlines, Inc., 504 U.S. 374, 381-82 (1992) (noting that obeying an unconstitutional 
law causes a party injury). 
The Supreme Court has repeatedly held that the separation of powers protects individual 
liberty. See Plaintiffs’ Mem. in Support of Motion for Prelim. Inj. at 25-26 (citing cases). It follows 
 
4 The Government is correct that Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7 (2008) does 
not support the proposition that where constitutional claims are alleged, courts presume irreparable 
harm. Plaintiffs regret the error. Plaintiffs’ burden, instead, is to show a likelihood of irreparable 
harm. Id. at 22. 
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that a violation of the separation of powers—such as the CDC’s exercise of the power to make law 
at issue in this case—constitutes irreparable harm. It would be bizarre, to say the least, if the 
principle were otherwise and a violation of the right to free speech constituted irreparable harm 
but a violation of the core animating principle of our Constitution did not. After all, one of the 
purposes of the right to free speech is to ensure that government remain “responsive to the will of 
the people.” New York Times v. Sullivan, 376 U.S. 254, 301 (1964). This is, of course, a key 
purpose of the separation of powers as well. See, e.g., Free Enterprise Fund v. Public Co. 
Accounting Oversight Bd., 561 U.S. 477, 513 (2010) (stating that separation of powers ensures 
that government remain accountable to the people). If the Government were correct, it would 
constitute irreparable harm to prevent Plaintiffs from talking about the separation of powers, but 
the courts would be entirely justified in shrugging off an actual violation of that principle.  
B.  There Is No Prospect of Collecting Debts from All Insolvent Individuals 
The Government contends that there is no irreparable harm because Plaintiffs might be able 
to collect on back-rent at some later point. But if we take seriously the sworn statements in the 
Renter Declarations then the tenants are necessarily insolvent because they’ve attested to the fact 
that they cannot meet their contractual obligations. This point distinguishes Elmsford Apt. Assoc., 
LLC v. Cuomo, No. 20-4062, 2020 WL 3498456, at *15 (S.D.N.Y. June 29, 2020). In Elmsford 
the plaintiffs challenged a state eviction moratorium where there was no requirement that the tenant 
attest to insolvency. While the Order theoretically permits landlords to pursue back-rent and late 
fees, the economic reality is that landlords cannot collect from insolvent tenants. And if there is no 
meaningful prospect of collecting from non-paying tenants then there is necessarily irreparable 
harm. See Certified Restoration Dry Cleaning Network, L.L.C. v. Tenke Corp., 511 F.3d 535, 550 
(6th Cir. 2007) (recognizing irreparable harm where it would be difficult to ensure that a plaintiff 
would be fully compensated); see also Hoxworth v. Blinder, Robinson & Co., 903 F.2d 186, 206 
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(3rd Cir. 1990) (recognizing that the possibility of an unsatisfied money judgment may establish 
irreparable injury).  
The Government implies that the tenants may be lying. Opp. Br. at 13-14. But this is a 
peculiar position for the Government to be taking when the CDC’s Order states that a tenant may 
invoke the protections of the moratorium by submitting their sworn declaration that they cannot 
pay rent. It smacks of gamesmanship for the Government to now argue that landlords—and 
presumably local courts—should assume that many tenants are simply taking advantage of the 
moratorium. And it raises the question of how a landlord is supposed to know whether a tenant is 
hiding assets or is otherwise capable of paying when they have sworn otherwise. 
Plaintiffs have no obvious basis to challenge the Renter’s Declarations at issue here. For 
that matter, the Akron, Canton, and Toledo municipal courts have all denied evictions under the 
CDC Order whenever a tenant has submitted a signed Renter’s Declaration. See Complaint ¶¶ 40-
41, 52.5 This is precisely what the CDC intended when it issued the Order—notwithstanding the 
CDC’s non-binding and post-hoc FAQ guidance. 
Hence, this Court should take Plaintiffs’ renters at their word and accept that they are 
insolvent. And it is well-established that a Plaintiff suffers irreparable harm if the party against 
whom he might otherwise seek monetary relief is insolvent. See Performance Unlimited, Inc. v. 
Questar Publishers, Inc., 52 F.3d 1373, 1382 (6th Cir. 1995) (recognizing irreparable harm where 
a “defendant is likely to be insolvent at the time of judgement.”) (quoting Teradyne, Inc. v. Mostek 
Corp., 797 F.2d 43, 52 (1st Cir. 1986); Roland Mach. Co. v. Dresser Indus., Inc., 749 F.2d 380, 
386 (7th Cir. 1984) (same). Nonetheless the Government speculates that these insolvent tenants 
 
5 Plaintiffs’ Memorandum of Law errantly directed the Court to the Declaration of Lila Wohlend, 
Appendix A, for a copy of the Canton Municipal Court’s order. This order is available online at 
https://www.cantoncourt.org/PDF/Covidevictionorder.pdf. 
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might recover financially by the time a landlord should obtain judgment in a collection action. Yet 
there is no basis for assuming an insolvent individual will see a dramatic change in fortunes.  
Aside from the Northern District of Georgia’s decision in Brown, 2020 WL 6364310, 
nothing in the Government’s cited cases supports the proposition that an unexpected intervening 
event can defeat a current showing of insolvency. See Dennis Melancon, Inc. v. City of New 
Orleans, 703 F.3d 262, 279 (5th Cir. 2012) (stating only that the plaintiff was likely to obtain 
future monetary relief “in the ordinary course of litigation.”). For that matter, the Brown decision 
is flawed because it assumes that an insolvent tenant is likely to receive a windfall. See Deckert v. 
Indep. Shares Corp., 311 U.S. 282, 290 (1940) (holding that a preliminary injunction was 
appropriate because there were “allegations” of insolvency).  
C. The CDC Abrogated Plaintiffs’ Right To Control Their Property 
The Government argues that only a permanent deprivation of real property constitutes 
irreparable harm. Opp. Br. at 10. The Government provides no citation for this proposition aside 
from the Northern District of Georgia’s decision in Brown, which balked only at assuming a 
categorical rule that any impingement of property rights is irreparable While it is true that 
Wonderland Shopping Ctr. Venture Ltd. P’ship v. CDC Mortg. Capital, Inc., 274 F.3d 1085, 1097 
(6th Cir. 2001), found irreparable harm where a property was subject to foreclosure, that opinion 
does not begin to imply that only threat of permanent loss constitutes irreparable harm. Nor does 
the decision in Minard Run Oil Co. v. U.S. Forest Serv., 670 F.3d 236, 256 (3d Cir. 2011) provide 
support for Defendants’ cribbed view of what constitutes irreparable harm to Plaintiffs’ property 
rights. On the contrary, Minard Run Oil Co. recognized that a plaintiff may establish irreparable 
harm when denied immediate use of real property. Just as the CDC Order causes irreparable harm 
in abrogating Plaintiffs’ right to exert dominion and temporal control over their properties, 
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plaintiffs in Minard Run Oil Co. had suffered irreparable harm because they were denied 
immediate use of their property to extract profits.  
Moreover, the Government fails to reconcile other cases that recognize irreparable harm 
where there the property interest is subject to neither permanent deprivation nor destruction. For 
example, in Roda Drilling Co. v. Siegal, 552 F.3d 1203, 1211 (10th Cir. 2009), real estate investors 
were held to have suffered irreparable harm in a suit against an investment manager because they 
were “miss[ing] opportunities.” Likewise, in E. Tennessee Nat. Gas Co. v. Sage, 361 F.3d 808, 
(4th Cir. 2004), the Fourth Circuit recognized that there was irreparable harm in denying plaintiffs 
the right of immediate use of real property, even where the injury complained of was principally 
economic. Id. at 828-29 (noting that delay in allowing use of the property would cause “significant 
financial harm”). 
III.  
IT IS NEVER IN THE PUBLIC INTEREST FOR A FEDERAL AGENCY TO 
ACT LAWLESSLY 
The Government asserts that the public interest favors allowing for the continued 
enforcement of the CDC Order—even if Plaintiffs are correct that it violates it the Constitution, 
was promulgated without statutory authority and or in violation of the APA. Opp. Br. at 36. 
Notably, one of the decisions that the Government cites for this proposition was recently vacated 
by a decision of the U.S. Supreme Court, which unequivocally repudiated the idea that “the 
Constitution can be put away and forgotten” during a pandemic. Cuomo, 2020 WL 6948354, at 
*3. And Brown was wrongly decided to the extent it suggests otherwise.6 See Home Bldg. & Loan 
 
6 The Government also points to a string of cases where the courts concluded it was not in the 
public interest to issue a preliminary injunction. But, tellingly, in all those cases plaintiffs were 
unlikely to prevail on the merits. The converse is true here. Because Plaintiffs are likely to prevail 
on the merits, the public interest factor necessarily weighs in their favor.  
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Ass’n v. Blaisdell, 290 U.S. 398, 426 (1934) (“Emergency does not increase granted power or 
remove or diminish the restrictions imposed upon power granted or reserved.”).  
It can never be in the public interest to take actions that have not been authorized by 
Congress because ultra vires regulation violates the will of the governed. See INS v. Chadha, 462 
U.S. 919, 951-52 (1983) (defining the Legislature’s constitutional authority). For that matter, it 
can never be in the public interest to allow continued enforcement of a rule that violates the 
Administrative Procedure Act because, with enactment of the APA, Congress decided that 
adherence to notice-and-comment procedures served vital public functions. And it can never be in 
the public interest for government to violate separation of powers because the Constitution 
represents the “ultimate expression of the public interest.” Gordon v. Holder, 721 F.3d 638, 653 
(D.C. Cir. 2013). See G & V Lounge, Inc. v. Mich. Liquor Control Comm’n, 23 F.3d 1071, 1079 
(6th Cir. 2001) (“[I]t is always in the public interest to prevent violation of constitutional rights.”).  
CONCLUSION 
For the foregoing reasons, Plaintiffs’ motion for preliminary injunction should be granted. 
 
DATED: December 1, 2020.   
Respectfully submitted: 
 
/s/ STEVEN M. SIMPSON     
STEVEN M. SIMPSON* 
DC Bar No. 462553 
Pacific Legal Foundation 
3100 Clarendon Blvd., Suite 610 
Arlington, VA 22201 
Tel: (202) 888-6881 
SSimpson@pacificlegal.org 
 
MAURICE A. THOMPSON 
(0078548) 
1851 Center for Constitutional Law 
122 E Main St. 
Columbus, OH 43215 
Tel: (614) 340-9817 
 
 
LUKE A. WAKE* 
DC Bar No. 1009181 
ETHAN W. BLEVINS* 
Washington State Bar No. 48219 
HANNAH SELLS MARCLEY* 
Washington State Bar No. 52692 
Pacific Legal Foundation 
930 G Street 
Sacramento, CA 95814 
Tel: (916) 419-7111 
Fax: (916) 419-7747 
LWake@pacificlegal.org  
EBlevins@pacifclegal.org 
HMarcley@pacificlegal.org 
*Pro hac vice  
Attorneys for Plaintiffs 
 
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CERTIFICATE OF SERVICE 
I hereby certify that on December 1, 2020, I electronically filed the foregoing document 
with the Clerk of the Court via the CM/ECF system, which will cause a copy to be served upon 
counsel of record. 
 
By /s/ STEVEN M. SIMPSON 
  
STEVEN M. SIMPSON 
 
 
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