Memorandum Opinion and Order — Skyworks v. CDC (N.D. Ohio)

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U.S. District Court for the Northern District of Ohio · No. 5:20-cv-02407-JPC · Doc. 54 · 2021-03-10 · Docket on CourtListener

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UNITED STATES DISTRICT COURT 
NORTHERN DISTRICT OF OHIO 
EASTERN DIVISION 
SKYWORKS, LTD., et al., 
Plaintiffs, 
v. 
CENTERS FOR DISEASE 
CONTROL AND PREVENTION, 
et al., 
Defendants. 
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Case No. 5:20-cv-2407 
Judge J. Philip Calabrese 
Magistrate Judge  
Carmen E. Henderson 
OPINION AND ORDER 
In the early days of the coronavirus pandemic, Congress swiftly enacted a 
nationwide moratorium on evictions.  That congressional action expired on July 24, 
2020.  About two weeks later, President Trump directed his administration to 
consider whether such a measure should be part of efforts to combat the spread of 
Covid-19 moving forward.  In response, the Centers for Disease Control and 
Prevention, commonly known as the CDC, ordered a moratorium on some, but not 
all, evictions.  That moratorium differs somewhat from the one Congress enacted and 
is set to expire on March 31, 2021. 
Plaintiffs, a collection of landlords, property managers, and a trade association 
representing similar persons, bring various challenges to the authority of the CDC to 
issue the moratorium and seek to enjoin its enforcement.  Plaintiffs’ challenges and 
CDC’s response implicate any number of competing public interests—from public 
health and welfare during a pandemic to disruption of property rights and the 
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efficient operation of the nation’s housing and rental markets, from providing 
economic relief to tenants struggling as so many are with the economic fallout 
resulting from the policy responses to the pandemic to the proper role of the national 
and State governments in our federal system.  None of these interests compel a 
particular result in this case.  That is, one may view the CDC’s eviction moratorium 
as good and essential public policy or the opposite.  But those considerations are not 
for the Court.  Nor may the Court decide this case based on its own personal or policy 
preferences or its views of the competing public interests involved. 
 
Instead, this dispute presents a narrower question.  This case turns on whether 
Congress has authorized the CDC to adopt a nationwide eviction moratorium.  That 
narrower issue depends on interpretation of the particular statutes at issue—a more 
lawyerly and arcane task about which reasonable people may ultimately disagree.  It 
also requires more careful and thoughtful analysis than what typically drives 
headlines and broad public comment, particularly on social media, in cases of this 
sort.   
STATEMENT OF FACTS 
 
As Americans have come to know over the past year, the novel SARS-CoV-2 
virus, first detected in China, has the potential to cause a severe respiratory disease 
known as Covid-19, which manifests with a variety of symptoms, including cough, 
fatigue, muscle or body aches, loss of taste or smell, and difficulty breathing, among 
others.  See generally Declaring a National Emergency Concerning the Novel 
Coronavirus Disease (COVID-19) Outbreak, Proclamation 9994, 85 Fed. Reg. 15,337, 
15,337 (Mar. 13, 2020); Temporary Halt in Residential Evictions to Prevent the 
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Further Spread of COVID-19, 85 Fed. Reg. 55,292, 55,292 (Sept. 4, 2020).  Persons 
infected with Covid-19 may require hospitalization, intensive care, or the use of a 
ventilator.  85 Fed. Reg. at 55,292.  Though the medical community continues to 
develop new treatments and therapies, severe cases of Covid-19 may prove fatal.  Id.  
Certain populations, including those with co-morbidities such as obesity, serious 
heart conditions, or diabetes have an increased risk for severe illness if infected.  Id. 
 
The virus spreads easily by airborne transmission.  Id.  Prolonged, close contact 
(within approximately six feet) creates conditions for easy transmission through 
droplets produced when a carrier talks, coughs, or sneezes.  Id.  Those who do not 
manifest symptoms but are infected can spread the disease.  Id.   
A. 
The CARES Act Statutory Moratorium  
On March 13, 2020, President Trump declared Covid-19 a national emergency.  
85 Fed. Reg. at 15337–38.  Since then, the nation has undertaken extensive and 
unprecedented steps to manage the spread of the disease and address the economic 
fallout.  Of relevance here, Congress passed and President Trump signed the 
Coronavirus Aid, Relief, and Economic Security Act, Pub. L. 116-134 (Mar. 27, 2020) 
(the “CARES Act”).  Sections 4022 through 4024 of the CARES Act addressed 
housing-related issues, including protections for holders of federally backed 
mortgages.  See id. § 4024(b).   
Among other things, the CARES Act enacted a 120-day moratorium on eviction 
filings based on the failure of a tenant residing in certain federally financed 
properties to pay rent.  The statute provides: 
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During the 120-day period beginning on the date of enactment of 
this Act, the lessor of a covered dwelling may not— 
 
(1) make, or cause to be made, any filing with the court of 
jurisdiction to initiate a legal action to recover possession of the covered 
dwelling from the tenant for nonpayment of rent or other fees or charges; 
or  
 
(2) charge fees, penalties, or other charges to the tenant related 
to such nonpayment of rent. 
 
Id.  Additionally, the statute prevented a landlord from giving a notice of eviction to 
a tenant residing in a covered property until the 120-day statutory eviction 
moratorium expired and, even then, forestalled eviction proceedings for an additional 
30 days.  Id. § 4024(c).  This moratorium and other protections for renters expired on 
July 24, 2020.   
 
During this general timeframe, various States implemented eviction moratoria 
of their own.  See 85 Fed. Reg. at 55,296 n.36.  Some have since expired.  Id. 
B. 
The First CDC Order 
 
On August 8, 2020, President Trump issued an executive order directing 
the Secretary of Health and Human Services and the Director of the CDC to “consider 
whether any measures temporarily halting residential evictions for any tenants for 
failure to pay rent are reasonably necessary to prevent the further spread of 
COVID-19 from one State or possession into any other State or possession.”  Fighting 
the Spread of COVID-19 by Providing Assistance to Renters and Homeowners, 
Executive Order 13,945, 85 Fed. Reg. 49,935, 49,936 (Aug. 8, 2020).   
Pursuant to Executive Order 13,945, the CDC so found, and issued its first 
eviction moratorium on September 4, 2020.  See Temporary Halt in Residential 
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Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 
2020).  Acting on an emergency basis pursuant to Section 361 of the Public Health 
Service Act, 42 U.S.C. § 264, and 42 C.F.R. § 70.2, and affirmatively disclaiming 
promulgation of a rule under the Administrative Procedure Act, the CDC “determined 
the temporary halt in evictions in this Order constitutes a reasonably necessary 
measure . . . to prevent the further spread of COVID-19 throughout the United 
States.”  85 Fed. Reg. at 55,296.  Indeed, the CDC acted based on “the convergence of 
COVID-19, seasonal influenza, and the increased risk of individuals sheltering in 
close quarters in congregate settings such as homeless shelters, which may be unable 
to provide adequate social distancing as populations increase” as fall and winter 
approached.  Id.  But the CDC also sought to head off further spread of Covid-19 when 
individuals become homeless and unsheltered.  Id.   
B.1. 
Key Provisions of the First CDC Order 
 
The first CDC order imposed a moratorium on evictions through December 31, 
2020, by directing that “a landlord, owner of a residential property, or other person 
with a legal right to pursue eviction or possessory action shall not evict any covered 
person.”  Id.  Unlike the statutory moratorium enacted in the CARES Act, which 
applied to certain federally backed rental properties, the first CDC order applied 
throughout the nation to all residential properties.  Id. at 55,293.   
 
The CDC moratorium does not provide relief for tenants’ rent obligations.  Id. 
at 55,292.  That is, notwithstanding the moratorium, a tenant is still responsible for 
rent and other housing payments provided by lease, which continue to accrue, plus 
fees, penalties, and interest.  Id. 55,296.  Nor does the CDC moratorium preclude 
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eviction of tenants who, for example, engage in criminal activity on the premises, 
violate building codes, damage property, threaten the health and safety of others, or 
breach their lease in some way other than untimely payment of rent.  Id. at 55,294. 
Moreover, the moratorium is not self-executing.  To receive protection under 
the first CDC order, tenants must submit to their landlords a declaration affirming 
that they satisfy seven criteria:  (1) they have used best efforts to obtain government 
assistance to make rental payments; (2) they expect to earn less than $99,000 in 
annual income in 2020, were not required to pay income taxes in 2019, or qualified 
for a stimulus check under the CARES Act; (3) they are unable to pay full rent due to 
“substantial loss of household income, loss of compensable hours of work or wages, 
lay-offs, or extraordinary out-of-pocket medical expenses”; (4) they are using best 
efforts to make partial payments; (5) they would likely experience homelessness or 
need to move into a shared residence if evicted; (6) they understand that rent 
obligations still apply; and (7) they understand the moratorium ends on December 
31, 2020.  Id. at 55,297.   
B.1.a. Rental Assistance 
The CDC’s first order notes that the Department of Housing and Urban 
Development informed CDC that recipients of certain federal funds under the CARES 
Act—States, cities, communities, and nonprofits—may use those funds to provide 
rental assistance and otherwise prevent evictions.  Id.  Likewise, the first order notes 
that the Treasury Department allows use of certain federal funds for rental 
assistance to prevent evictions.  Id.   
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B.1.b. Enforcement 
For its enforcement, the first CDC order contemplates federal cooperation with 
State and local officials and authorizes the Department of Justice to initiate 
proceedings to enforce the order.  Id. at 55,296.  It also provides for criminal penalties.  
A violation subjects individuals to a fine up to $250,000, one year in jail, or both.  Id.  
Corporate landlords who violate the order can be fined up to $500,000.  Id.  Finally, 
the CDC found that “measures by states, localities, or U.S. territories that do not 
meet or exceed these minimum protections are insufficient to prevent the interstate 
spread of COVID-19.”  Id.  But the first CDC order did not identify which States, 
localities, or territories meet or exceed its protections for renters.   
B.2. 
Guidance 
In guidance issued in October 2020, the CDC stated that its first order “does 
not preclude a landlord from challenging the truthfulness of a tenant’s declaration in 
any state or municipal court.”  See HHS/CDC Temporary Halt in Residential Evictions 
to Prevent the Further Spread of COVID-19:  Frequently Asked Questions at 4 (Oct. 12, 
2020) (available at https://www.cdc.gov/coronavirus/2019-ncov/downloads/eviction-
moratoria-order-faqs.pdf).  Further, the guidance clarifies landlords may commence 
eviction proceedings so long as the eviction of a covered person for nonpayment of 
rent does not take place during the moratorium.  Id.  In this respect, CDC confirmed 
that its first order does not “terminate or suspend the operations of any state or local 
court.”  Id. at 1.   
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C. 
Temporary Congressional Extension 
 
Following the 2020 presidential election and as the December 31, 2020 
expiration date for the first CDC order drew near, Congress passed the Consolidated 
Appropriations Act of 2021, which President Trump signed into law on December 27, 
2020.  That continuing resolution to fund the federal government for the balance of 
the fiscal year extended the CDC eviction moratorium through January 31, 2021.  As 
relevant here, the Consolidated Appropriations Act provides: 
The order issued by the Centers for Disease Control and Prevention under 
section 361 of the Public Health Service Act (42 U.S.C. 264), entitled 
‘‘Temporary Halt in Residential Evictions To Prevent the Further Spread 
of COVID–19’’ (85 Fed. Reg. 55292 (September 4, 2020) is extended through 
January 31, 2021, notwithstanding the effective dates specified in such 
Order. 
 
Pub. L. No. 116-260, div. N, tit. V, § 502, 134 Stat. 1182, 2079 (2020).  In the 
legislation, Congress did not otherwise address the eviction moratorium in the first 
CDC order, amend the Public Health Service Act, or enact a separate statutory 
moratorium as it did in the CARES Act.   
The Consolidated Appropriations Act also appropriates $25 billion in 
emergency rental assistance to State and local governments to provide financial 
assistance to eligible households, “including the payment of rent [and] rental 
arrears,” id. § 501(c)(2), either directly to renters or to landlords, id. § 501(f).   
D. 
The Second CDC Order 
 
On January 29, 2021, the CDC issued its second order, extending its first order 
from September 2020 through March 31, 2021.  Temporary Halt in Residential 
Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 
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2021).  In its second order, CDC incorporated much of its first order, but updated its 
findings.  Id. at 8021.  In particular, CDC referenced studies that “[p]reliminary 
modeling projections and observational data” from States that lifted eviction 
moratoria 
“indicate 
that 
evictions 
substantially 
contribute 
to 
COVID-19 
transmission.”  Id. at 8022.  Further, CDC postulated, based on “statistics on 
interstate moves,” that “mass evictions would likely increase the interstate spread of 
COVID-19.”  Id. at 8023.   
 
As additional grounds for its second order, CDC pointed to worsening 
conditions since September 4, 2020, id.at 8025, and emerging variants of the virus, 
id. at 8021.  Also, CDC documented outbreaks of Covid-19 at homeless shelters, id. 
at 8023, and made recommendations for shelters and other facilities housing those 
evicted to minimize the risk of transmission of SARS-CoV-2, id. at 8022, 8023.  
Finally, the CDC’s second order observed that eviction filings continued during the 
moratorium such that allowing it to expire would result in large numbers of evictions 
and contribute to the spread of Covid-19.  Id. at 8024, 8025. 
E. 
The American Rescue Plan Act of 2021 
 
On March 10, 2021, Congress enacted the American Rescue Plan Act, 
H.R. 1319, an approximately $1.9 trillion piece of legislation publicly touted as 
providing economic relief in the wake of Covid-19 and taking other measures to curb 
its spread.  Beyond providing additional financial assistance to help prevent 
evictions, no provision of that legislation addresses the CDC’s moratorium.   
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STATUTORY AND REGULATORY BACKGROUND 
Section 361 of the Public Health Service Act, enacted in 1944, permits the 
Secretary of the Department of Health and Human Services to authorize the CDC 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.  42 U.S.C. § 264(a).  (Although 
the statute states that this authority belongs to the Surgeon General, subsequent 
reorganizations not relevant here have resulted in the transfer of this responsibility 
to the Secretary.)  Section 361 goes on to direct the Secretary to make and enforce 
regulations for specific actions: 
For purposes of carrying out and enforcing such regulations, the 
[Secretary] may provide for such inspection, fumigation, disinfection, 
sanitation, pest extermination, destruction of animals or articles found 
to be so infected or contaminated as to be sources of dangerous infection 
to human beings, and other measures, as in his judgment may be 
necessary. 
42 U.S.C. § 264(a) (emphasis added).  Although other provisions of the statute do not 
bear directly on the dispute, they impose limits on the Secretary’s power to 
apprehend, detain, or release individuals, id. § 264(b) & (c); authorize the Secretary 
to issue regulations to apprehend and examine people crossing State lines believed to 
be infected, id. § 264(d); and preempt State laws that conflict with federal authority 
in this area, id. § 264(e).   
 
In promulgating regulations pursuant to the delegation in Section 361(a), 
42 U.S.C. § 264(a), the Secretary in turn charged the CDC with taking measures to 
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prevent the spread of disease in language tracking that of the statute.  The applicable 
regulation provides: 
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.  Under the regulation, a determination that State actions are 
insufficient to prevent the spread of a disease is a precondition to action by the CDC.  
As with the statute, the regulation requires the spread of a communicable disease 
across State lines before CDC may act.  Finally, the regulation requires “reasonably 
necessary” agency actions but omits the last words of the statute, which authorizes 
“other measures” beyond the specific list of permissible actions introduced with the 
word “including.”  Compare 42 U.S.C. § 264(a) with 42 C.F.R. § 70.2.  This regulation 
provides for criminal penalties that track those set forth in the orders at issue.  42 
C.F.R. § 70.18. 
STATEMENT OF THE CASE 
A. 
Parties and Claims 
The National Association of Home Builders is a Nevada non-profit corporation 
that represents “companies that own and manage multi-family housing units.”  (ECF 
No. 1, ¶ 16, PageID #4.)  Apart from the National Association of Home Builders, 
Plaintiffs are property owners or managers of rental properties located in this 
District.  (Id., ¶¶ 12–15, PageID #3–4.)  Plaintiff Monarch Investment and 
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Management Group manages two companies, Plaintiffs Cedarwood Village 
Apartments I & II Owner B, LLC and Toledo Properties Owner B, LLC.  (ECF 
No. 12-2, PageID #119.)  Plaintiff Skyworks, Ltd. manages Clear Sky Realty, Inc.  
(Id. at PageID #138.)  Each of the three direct property managers—Cedarwood 
Village, Toledo Properties, and Clear Sky—had tenants who claimed protection under 
the first order.  (Id. at PageID #119–20, 131–32 & 138–39.)  Two of those tenants—
those living at Toledo Properties’ and Clear Sky’s properties—have since moved out 
or abandoned their rental units.  (ECF No. 41-1, PageID #512–13; ECF No. 44-1, 
PageID #559–60.)  There are currently three tenants at Cedarwood’s property who 
have invoked the protections of either CDC order.  (ECF No. 52, PageID #1850.) 
In addition to the parties, various amici appeared supporting Plaintiffs.  They 
include the New Civil Liberties Alliance, the National Apartment Association, and 
the National Association of Residential Property Managers.  (ECF No. 20, PageID 
#184.) 
 
In the complaint, Plaintiffs claim:  (1) the CDC’s orders exceed the agency’s 
statutory and regulatory authority in violation of the Administrative Procedure Act 
(Count I); (2) the orders are an unconstitutional exercise of legislative power in 
violation of Article I, Section 1 of the Constitution (Count II); (3) the CDC failed to 
engage in required notice and comment rulemaking in violation of the APA (Count 
III), (4) and that the Order is arbitrary and capricious in violation of the APA (Count 
IV).  (Id., ¶¶ 58–101, PageID #12–19.)  Plaintiffs seek a declaratory judgment, 
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injunctive relief, and attorneys’ fees and costs.  (Id., PageID #19.)  Plaintiffs moved 
for a preliminary injunction.  (ECF No. 12.)   
 
Plaintiffs named as Defendants the Centers for Disease Control and 
Prevention and various officials from the Trump Administration with responsibility 
for enforcing the CDC’s first order.  (ECF No. 1, PageID #1.)  Under Rule 25(d), 
officials in the Biden Administration substitute for those officials.  (See ECF No. 45, 
PageID #561 n.1.)  At this point, Defendants are the CDC; its Director, Rochelle P. 
Walensky and its acting Chief of Staff, Sherri P. Berger; the Department of Health 
and Human Services and its acting Secretary Norris Cochran; and Monty Wilkinson, 
the acting United States Attorney General.   
 
Various amici support the CDC’s eviction moratoria.  They include several 
organizations:  Community Legal Aid Services, Inc. and the National Housing Law 
Project (ECF No. 31, PageID #360), as well as the American Academy of Pediatrics, 
American Medical Association, Children’s Healthwatch, Coalition on Homelessness 
and Housing in Ohio, the George Consortium, GLMA: Health Professionals 
Advancing LGBTQ Equality, National Medical Association, Ohio Chapter of the 
American Academy of Pediatrics, and Public Health Law Watch (ECF No. 38, PageID 
#479).  The amici also include multiple individuals:  Emily A. Benfer, Matthew 
Desmond, Gregg Gonsalves, Peter Hepburn, Danya A. Keene, Kathryn M. Leifheit, 
Michael Z. Levy, Sabriya A. Linton, Craig E. Pollack, Julia Raifman, Gabriel L. 
Schwartz, and David Vlahov.  (Id.)     
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B. 
Procedural Posture 
 
Following the completion of briefing on Plaintiffs’ motion for a preliminary 
injunction, the case was reassigned to the undersigned.  (See Order, Dec. 16, 2020.)  
Because the Consolidated Appropriations Act of 2021 was pending at the time, the 
parties agreed to defer action on the motion for a preliminary injunction.  (ECF 
No. 40, PageID #507.)  After the CDC issued its second order, the parties submitted 
supplemental briefing.  Defendants filed their supplement on February 12, 2021.  
(ECF No. 47.)  Plaintiffs did the same on February 22, 2021.  (ECF No. 48.)  
 
At a subsequent status conference, the Court proposed, and the parties agreed, 
to advance determination of the merits pursuant to Rule 65(a)(2).  (Minute Order, 
Feb. 26, 2021.)  During that status conference, the parties also agreed that there are 
no material disputes of fact requiring presentation of evidence, so the Court converted 
the preliminary injunction hearing to oral argument on Plaintiffs’ challenge to the 
CDC’s eviction moratorium (id.), which the Court held on March 5, 2021.  In addition 
to the parties’ submissions, the Court analyzed the briefs of the amici for Plaintiffs 
and Defendants and the administrative record (ECF No. 49) as part of its ruling. 
JURISDICTION 
 
Although no party directly raises the issue, the Court has an independent 
obligation to examine its own jurisdiction.  See, e.g., Nikolao v. Lyon, 875 F.3d 310, 
315 (6th Cir. 2017) (citations and quotations omitted); Mercurio v. American Express 
Centurion Bank, 363 F. Supp. 2d 936, 938 (N.D. Ohio 2005).  Federal courts have 
original jurisdiction over “all civil actions arising under the Constitution, laws, or 
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treaties of the United States.”  28 U.S.C. § 1331.  Therefore, the Court has jurisdiction 
over this dispute.   
Nonetheless, standing presents a “threshold determinant[] of the propriety of 
judicial intervention.”  Warth v. Seldin, 422 U.S. 490, 517–18 (1975).  “[A]t an 
irreducible minimum, Article III requires the party who invokes the court’s authority 
to show that he personally has suffered some actual or threatened injury as a result 
of the putatively illegal conduct of the defendant” and that “the injury fairly can be 
traced to the challenged action and is likely to be redressed by a favorable decision.”  
Bender v. Williamsport Area Sch. Dist., 475 U.S. 534, 542 (1986) (cleaned up); see also 
Lujan v. Defenders of Wildlife, 504 U.S. 555, 560 (1992). 
 
To establish injury in fact, a plaintiff must show that it suffered “an invasion 
of a legally protected interest” that is “concrete and particularized” and “actual or 
imminent, not conjectural or hypothetical.”  Lujan, 504 U.S. at 560.  A particularized 
injury “affect[s] the plaintiff in a personal and individual way.”  Spokeo, Inc. v. 
Robins, 136 S. Ct. 1540, 1548 (2016).  An injury must also be concrete, which means 
it must actually exist.  Id. (citing Black’s Law Dictionary 479 (9th ed. 2009)).  A 
concrete injury is real and not abstract, but not necessarily tangible.  Id. (citations 
omitted).   
 
Applying these principles to the claims here, upon examination of the record, 
the Court determines that Plaintiffs have standing.  The landlord-Plaintiffs, Monarch 
(which manages Cedarwood and Toledo Properties) and Skyworks (which manages 
Clear Sky), were, are currently being, or will likely and imminently be harmed in an 
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Article III sense by the current order’s requirement that they provide housing for 
non-paying tenants.  All the landlord-Plaintiffs represented that, at one point at least, 
they had tenants who asserted they were covered persons under the order and did 
not pay their rent.  (ECF No. 12-2, PageID #119–20, 131–32, 138–39.)  The Clear Sky 
tenant moved out without settling rent arrears.  (ECF No. 41-1, PageID #512.)  Toledo 
Properties had a nonpaying tenant voluntarily vacate its property, but Monarch 
anticipates more tenants will imminently seek the protections of the order, although 
none yet have.  (ECF No. 44-1, PageID #560.)  The other landlord, Cedarwood (also 
managed by Monarch), has a tenant in possession who is a covered person and not 
currently paying rent.  (ECF No. 12-2, PageID #119–20.)   
 
As for the National Association of Homebuilders, it does not attempt to assert 
organizational standing, see Havens Realty Corp. v. Coleman, 455 U.S. 363 (1982), 
but it does have representational standing because “its members would otherwise 
have standing to sue in their own right, the interests at stake are germane to the 
organization’s purpose, and neither the claim asserted nor the relief requested 
requires participation of individual members in the lawsuit.”  American Canoe Ass’n, 
Inc. v. City of Louisa Water & Sewer Comm’n, 389 F.3d 536, 540 (6th Cir. 2004) 
(quoting Friends of the Earth, Inc. v. Laidlaw Envtl. Servs. Inc., 528 U.S. 167, 181 
(2000)); see also Hunt v. Wash. State Apple Advert. Comm’n, 432 U.S. 333, 343 (1977).  
That is, the National Association of Homebuilders has standing to sue if one of its 
members can demonstrate:  “(1) an injury in fact; (2) a causal connection between the 
alleged injury and the defendants’ conduct . . . ; and (3) redressability—that the 
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injury will likely be redressed by a favorable decision.”  Club v. United States E.P.A., 
793 F.3d 656, 661–62 (6th Cir. 2015) (cleaned up).   
 
In a footnote, Defendants question whether the National Association of 
Homebuilders has standing (ECF No. 23, n.9, PageID #259), to which the Plaintiffs 
replied and also submitted a supplemental declaration.  (ECF No. 33, PageID #401 
n.1.)  That supplemental declaration comes from an Indiana landlord, a member of 
the organization, who had tenants fail to pay rent and seek protection under the 
order.  (ECF No. 33-1, PageID #423–26.)  In addition to this supplemental 
declaration, the evidence before the Court shows that landlords in Ohio who are 
members of the National Association of Homebuilders have received declarations 
from tenants seeking protection under the CDC’s orders.  (ECF No. 12-2, PageID 
#148–49.)  Those tenants have stopped paying rent and would be subject to eviction 
in the absence of the order.  (Id.)  For these reasons, the Court concludes, like other 
courts that have considered similar suits, that Plaintiffs have standing.  See Tiger 
Lily v. United States Dep’t of Hous. & Urban Dev., ___ F. Supp. 3d ___, 2020 WL 
7658126, at *5 (W.D. Tenn. Nov. 6, 2020); Brown v. Azar, ___ F. Supp. 3d ___, 2020 
WL 6364310, at *4–5 (N.D. Ga. Oct. 29, 2020).  
ANALYSIS 
 
“In a case of actual controversy within its jurisdiction,” the Declaratory 
Judgment Act authorizes a district court to “declare the rights and other legal 
relations of any interested party seeking such declaration, whether or not further 
relief is or could be sought.”  28 U.S.C. § 2201.  Judgment as a matter of law is 
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appropriate “if the movant shows that there is no genuine dispute as to any material 
fact and the movant is entitled to judgment as a matter of law.”  Fed. R. Civ. P. 56(a). 
Before a court may issue a permanent injunction, a plaintiff must demonstrate:  
(1) it has suffered an irreparable injury; (2) the remedies available at law, such as 
monetary damages, are inadequate to compensate for that injury; (3) considering the 
balance of hardships between the plaintiff and defendant, a remedy in equity is 
warranted; and (4) a permanent injunction serves the public interest.  eBay Inc. v. 
MercExchange, L.L.C., 547 U.S. 388, 391 (2006) (citations omitted).  Essentially, this 
standard mirrors the considerations governing the issuance of a preliminary 
injunction, except that the plaintiff must also show actual success on the merits.  
Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987).  While a court 
balances these factors, it must consider each of them, and “even the strongest showing 
on the other three factors cannot eliminate the irreparable harm requirement.”  D.T. 
v. Sumner Cnty. Sch., 942 F.3d 324, 326–27 (6th Cir. 2019) (quotation omitted).     
I. 
The Merits of Plaintiffs’ Challenges 
 
Plaintiffs mount several challenges to the CDC’s eviction moratorium.  First, 
they argue that the order exceeds the statutory authority Congress delegated to the 
agency in Section 361 of the Public Health Services Act, 42 U.S.C. § 264.  Similarly, 
Plaintiffs maintain that CDC acted outside the scope of authority delegated to it in 
42 C.F.R. § 70.2.  (ECF No. 12, PageID #91–100.)  Defendants disagree, but also 
maintain that Congress ratified the agency’s action when it extended the moratorium 
in the Continuing Appropriations Act of 2021.  (ECF No. 47, PageID #573–74.)  These 
arguments raise two threshold issues, which in the Court’s view are dispositive:  
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(1) whether the CDC has the statutory and regulatory authority for a nationwide 
moratorium on evictions; and (2) whether Congress ratified the CDC’s order(s). 
I.A. 
Statutory and Regulatory Authority for the CDC’s Orders 
 
When construing a statute, the Court determines and gives effect to the intent 
of Congress as expressed in the statute it enacted.  See, e.g., Donovan v. FirstCredit, 
Inc., 983 F.3d 246, 253 (6th Cir. 2020) (citations omitted).  The Court begins “where 
all such inquires must begin:  with the text of the statute itself.”  United States v. Ron 
Pair Enters., Inc., 489 U.S. 235, 241 (1989) (citing Landreth Timber Co. v. Landreth, 
471 U.S. 681, 685 (1985)).  Where the statute’s language is plain, the inquiry also 
ends with the text.  Id.  Courts “endeavor to ‘read statutes with an eye to their 
straightforward and commonsense meanings.’”  Black v. Pension Benefit Guar. Corp., 
983 F.3d 858, 863 (6th Cir. 2020) (quoting Bates v. Dura Auto. Sys., Inc., 625 F.3d 
283, 285 (6th Cir. 2010)).  In doing so, courts ascribe “terms the ordinary meaning 
that they carried when the statute was enacted.”  Id. (citation and quotation omitted).   
 
When reading a statute, the Court “consider[s] the entire text, in view of its 
structure and of the physical and logical relation of its many parts.”  Hueso v. 
Barnhart, 948 F.3d 324, 333 (6th Cir. 2020) (quoting Antonin Scalia & Bryan A. 
Garner, Reading Law: The Interpretation of Legal Texts § 24, at p. 167 (2012)).  A 
court may not look to isolated words or phrases taken out of context to determine a 
statute’s meaning, but instead must account for both the specific text and the broader 
scheme.  Gundy v. United States, 139 S. Ct. 2116, 2126 (2019) (citing United Sav. 
Ass’n of Tex. v. Timbers of Inwood Forest Assocs., Ltd., 484 U. S. 365, 371 (1988); 
Utility Air Reg. Grp. v. EPA, 573 U.S. 302, 321 (2014)).  “Lastly, before deferring to 
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an administrative agency’s statutory interpretation, courts ‘must first exhaust the 
traditional tools of statutory interpretation and reject administrative constructions’ 
that are contrary to the clear meaning of the statute.’”  Black, 983 F.3d at 863 (quoting 
Arangure v. Whitaker, 911 F.3d 333, 336 (6th Cir. 2018)). 
I.A.1. Plain Language 
 
Accounting for amendments, Section 361 of the Public Health Service Act 
authorizes the promulgation and enforcement of regulations to protect the public 
health against the interstate spread of communicable diseases: 
The [CDC], with the approval of the [Secretary], is authorized to make 
and enforce such regulations as in his judgment are necessary to prevent 
the introduction, transmission, or spread of communicable diseases from 
foreign countries into the States or possessions, or from one State or 
possession into any other State or possession.  For purposes of carrying 
out and enforcing such regulations, the [Secretary] may provide for such 
inspection, fumigation, disinfection, sanitation, pest extermination, 
destruction of animals or articles found to be so infected or contaminated 
as to be sources of dangerous infection to human beings, and other 
measures, as in his judgment may be necessary. 
42 U.S.C. § 264(a) (emphasis added).  In the statute’s first sentence, Congress 
scarcely limits the power of the agency to accomplish this purpose, relying on its 
expert “judgment” of what is “necessary to prevent the introduction, transmission, or 
spread” of disease.  Id.  Standing alone, that first sentence sweeps broadly and 
appears to support Defendants’ argument.  If that were as far as the statute went, 
however, a reading that stopped there would likely raise a serious question whether 
Congress violated the Constitution by granting such a broad delegation of power 
unbounded by clear limitations or principles.   
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But the statute’s first sentence does not stand alone.  Its second sentence 
provides additional clarity and direction, both by virtue of following the first sentence 
and by expressly tying the first sentence to the power Congress authorized the agency 
to exercise.  Id. (“For purposes of carrying out and enforcing such regulations . . . .”).  
This second sentence then lists illustrative examples of the types of actions the CDC 
may take.  For example, the statute contemplates the “inspection, fumigation, 
disinfection, sanitation, pest extermination, destruction of animals or articles.”  Id.  
Tying these actions to “animals or articles” links the agency’s power to specific, 
tangible things on which the agency may act.  Even a reading of the statute that links 
“destruction” to “animals or articles” leaves the other actions in the statute 
(inspection, fumigation, disinfection, sanitation, and pest extermination), which by 
their common meanings and understandings are tied to specific, identifiable 
properties.  And the next limitation in the statute reinforces the agency’s targeted 
power:  “found to be so infected or contaminated as to be sources of dangerous 
infection to human beings.”  Id.  With this language, Congress directs the agency to 
act on specific animals or articles which are themselves infected or a source of 
contagion that present a risk of transmission to other people.   
 
That takes the Court to the final words of the first subsection of the statute, 
“and other measures, as in his judgment may be necessary,” which at bottom drive 
the dispute between the parties.  Defendants argue that the statute authorizes other 
measures beyond those specified.  After all, the text uses examples and does not 
exhaust the range of permissible actions the agency may take.  But to read the words 
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“other measures” as Defendants propose would divorce them from their context and 
take them in isolation without regard for what came before.  This the Court may not 
do.  See Gundy, 139 S. Ct. at 2126 (citing Davis v. Michigan Dep’t of Treasury, 489 
U.S. 803, 809 (1989)).  Doing so creates at least three textual problems. 
 
First, following the list of examples provided, “other measures” must be 
reasonably of the type Congress contemplated in the statutory text—fumigation, 
disinfection, destruction of animals or things, or other measures reasonably of this 
type.   
Second, Congress directed the actions set forth in Section 361 to certain 
animals or articles, those so infected as to be a dangerous source of infection to people.  
On the face of the statute, the agency must direct other measures to specific targets 
“found” to be sources of infection—not to amorphous disease spread but, for example, 
to actually infected animals, or at least those likely to be, which also have the 
required nexus with interstate or foreign commerce.   
 
Third, the common meaning of the word “article” does not extend the agency’s 
reach to an action such as evictions.  As used in the statute, an article means “a 
particular object or item.”  Article, The American Heritage Dictionary (4th ed. 2000); 
see also Article, Oxford English Dictionary (20th ed. 1981) & (supp. 1987) (defining 
article as a material thing); Merriam-Webster Online Dictionary, https://www.
merriam-webster.com/dictionary/article (last visited Mar. 10, 2021) (a particular kind 
of object).   
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Nothing about the remaining sections of the statue alters this conclusion.  The 
balance of Section 361 deals with quarantine, 42 U.S.C. § 264(b)–(d), and preemption, 
id. § 264(e).  While these provisions confirm that CDC has broad authority to act 
under the statute to prevent the transmission of communicable diseases, the 
additional subsections do not supplant the reach of the first or create other grounds 
justifying the orders at issue.   
 
The most natural and logical reading of the statute as a whole does not extend 
the CDC’s power as far as Defendants maintain.  Such a broad reading of the statute, 
and the term “other measures” in particular, would authorize action with few, if any, 
limits—tantamount to creating a general federal police power.  It would also 
implicate serious constitutional concerns, which Plaintiffs did not raise here.  See 
Terkel v. Centers for Disease Control & Prevention, ___ F. Supp. 3d ____, 2021 WL 
742877, at *4–6 (E.D. Tex. Feb. 25, 2021) (declaring that the moratorium exceeds the 
scope of federal power the Commerce Clause permits), appeal filed, No. 21-40137 (5th 
Cir. 2021).  But the text does not authorize such boundless action or depend on the 
judgment of the Director of the CDC or other experts for its limits.  The eviction 
moratorium in the CDC’s orders exceeds the statutory authority Congress gave the 
agency.   
I.A.2. Other Relevant Decisions 
 
Where the text of a statute is plain, the Court’s task is at an end.  Ron Pair 
Enters., 489 U.S. at 241.  Because the meaning of the statute is clear, there is no need 
to look to the canons of statutory construction.  See, e.g., Chickasaw Nation v. United 
States, 534 U.S. 84, 94 (2001).  Further, because the statute does not authorize the 
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agency’s action, the Court need not separately analyze the regulation at 42 C.F.R. 
§ 70.2, which the parties agree largely tracks the language of Section 361(a), 
42 U.S.C. § 264(a).  “[A]n agency literally has no power to act, . . . unless and until 
Congress confers power upon it.”  Louisiana Pub. Serv. Comm’n v. F.C.C., 476 U.S. 
355, 357 (1986).  Therefore, the regulation cannot save the statute.   
I.A.2.a. Brown and Chambless Enterprises 
 
Nonetheless, the Court acknowledges that, in reading the statute not to extend 
as far as Defendants contend, two district courts have reached the opposite 
conclusion.  Chambless Enters., LLC v. Redfield, ___ F. Supp. 3d ____, 2020 WL 
7588849, at *5 (W.D. La. Dec. 22, 2020); Brown, ___ F. Supp. 3d at ____, 2020 WL 
6364310, at *9.  Another court declined to enjoin the eviction moratorium without 
interpreting the statute.  Tiger Lily, ___ F. Supp. 3d ____, 2020 WL 7658126, at *1.  
Differing readings of the statute do not render it ambiguous.  See Bank of America 
Nat. Trust & Sav. Ass’n v. 203 N. LaSalle St. P’ship, 526 U.S. 434, 461 (1999) 
(Thomas, J., concurring) (“A mere disagreement among litigants over the meaning of 
a statute does not prove ambiguity; it usually means that one of the litigants is simply 
wrong.”); see also Rosmer v. Pfizer, Inc., 263 F.3d 110, 118 (4th Cir. 2001).  
 
Among other disagreements with these decisions, the CDC’s authority does 
not, in the Court’s view, depend on whether the examples used in Section 361(a) are 
illustrative or exhaustive, as the Brown Court suggests.  ___ F. Supp. 3d at ____, 2020 
WL 6364310, at *8.  Nor do the provisions of subsections (b) through (d) somehow 
expand the language of subsection (a) or the agency’s powers relating to “articles” 
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there.  Id.  Neither court considered the meaning of the phrase “animals or articles” 
in the statute or how it relates to the power Congress ultimately gave the agency.  
The Chambless Enterprises Court appears to ground its reasoning in a healthy dose 
of deference to the judgment of federal experts in the face of medical and scientific 
uncertainty.  ___ F. Supp. 3d at ____, 2020 WL 7588849, at *5.  Without question, 
effective pandemic response depends on the judgment of reliable science—not 
political science.  But that obvious truism does not empower agencies or their officials 
to exceed the mandate Congress gives them.   
 
Overall, the Brown and Chambless Enterprises decisions have the feel of 
adopting strained or forced readings of the statute, stretching to rationalize the 
governmental policy at issue.  That is not a proper methodology of statutory 
interpretation.  Nor is it the proper role of the courts.  Although the Court reaches a 
different result than the Brown and Chambless Enterprises Courts, the language of 
the statute compels that result. 
I.A.2.b. FDA’s Ban on Turtle Sales 
 
Beyond these cases that considered the eviction moratorium, Defendants rely 
on Independent Turtle Farmers of Louisiana, Inc. v. United States, 703 F. Supp. 2d 
604 (W.D. La. 2010), as do the courts in Brown, ___ F. Supp. 3d at ____, 2020 WL 
6364310, at *8–9, and Chambless Enterprises, ___ F. Supp. 3d at ____, 2020 WL 
7588849, at *5.   
 
In Independent Turtle Farmers, the district court addressed the authority of 
the Food and Drug Administration to ban the sale of baby turtles as a public health 
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measure to curb the spread of salmonellosis, especially among children who are 
particularly susceptible.  As relevant here, FDA enacted the ban pursuant to 
Section 361(a) based on a delegation of authority from the Secretary.  Deferring to 
FDA’s judgment, the court read the statute as providing illustrative, not exhaustive, 
examples of available public-health measures and upheld the ban, even though the 
text of the statute does not specifically provide for one.  Id. at 620–21.  Additionally, 
the court based its ruling on FDA’s narrow tailoring of the ban.  It barred sales of 
turtles as pets, which more likely involved children, but exempted turtle transactions 
for business or educational purposes.  Id. at 620 n.20.  In reaching this result, the 
court reaffirmed an earlier decision in Louisiana v. Mathews, 427 F. Supp. 174, 176 
(E.D. La. 1977), which upheld the ban even though it reached healthy turtles, not just 
those infected with disease-causing bacteria.  Independent Turtle Farmers, 703 
F. Supp. 2d at 618–19. 
 
Here, the CDC moratorium is not tailored in the same way.  It allows some 
evictions to proceed, including those based on criminal conduct, damage to property, 
or reasons other than nonpayment of rent.  Such evictions have as much chance of 
spreading Covid-19 as those subject to the moratorium.  More fundamentally, it does 
not follow that one district court’s reading of Section 361(a) to authorize a ban on the 
sale of animals, which happen to be an uncommon pet and posed a health threat 
particularly to children, justifies the CDC’s action here.  Such a contention might well 
surprise a member of the public who is not a lawyer.  In the end, Independent Turtle 
Farmers stands for the unremarkable proposition that the text of the statute provides 
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examples that are illustrative not exhaustive.  Even then, the decision makes clear 
that the challenged ban at issue there was one other measure FDA could take that 
was reasonably of the type Congress permitted under the statute.  Id. at 620.  It has 
little to say about whether the statute authorizes the qualitatively different agency 
action here.   
I.B. 
Congressional Ratification of the Order 
 
In its supplemental brief, Defendants contend that Congress ratified the CDC’s 
moratorium by enacting the Consolidated Appropriations Act of 2021.  (ECF No. 47, 
PageID #573.)  By extending the CDC’s first order, which was set to expire on 
December 31, 2020, by thirty days, Congress expressed its view that the agency 
necessarily had the authority for the eviction moratorium, or so Defendants maintain.  
(Id. at PageID #573–74.)   
 
It is well settled that Congress has the “power to ratify the acts which it might 
have authorized[,]” in the first place; when it does so, the ratification amounts to 
lawful action “equivalent to an original authority.”  United States v. Heinszen & Co., 
206 U.S. 370, 384 (1907) (relating to ratification of a tax).  Put another way, “Congress 
may, by enactment not otherwise inappropriate, ratify acts which it might have 
authorized and give the force of law to official action unauthorized when taken.” 
Swayne & Hoyt v. United States, 300 U.S. 297, 301–02 (1937) (cleaned up).  When 
Congress ratifies prior actions, however, it must do so clearly and “explicitly so 
declare[].”  See Heinszen, 206 U.S. at 390 (citing Lincoln v. United States, 202 U.S. 
484, 498 (1906)).  Ratification, or “congressional authorization,” requires something 
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more than “mere acquiescence” to the action.  Hannah v. Larche, 363 U.S. 420, 439 
(1960).   
 
Here, Congress in the Appropriations Act extended the date on which the 
CDC’s first order expired.  Consolidated Appropriations Act of 2021, Pub. L. 
No. 116-260, div. N, tit. V, § 502, 134 Stat. 1182, 2097 (2020).  But Congress did not 
speak to the merits of the policy at issue, as it did in the CARES Act.  Nor did 
Congress amend the organic statute, Section 361 of the Public Health Services Act, 
either to create a new subsection authorizing an eviction moratorium or add such an 
action to the list of permissible agency actions in subsection (a).  All Congress did was 
change the expiration date of the first order.  In context, such a limited action makes 
sense.  At that moment, congressional action facilitated the transition between 
presidential administrations and, effectively, gave the incoming administration the 
opportunity to determine its own policies for responding to the pandemic.  In this 
way, the Appropriations Act does not amount to a ratification in any sense in which 
Congress has historically ratified prior actions.  Accordingly, the Appropriations Act 
does not change the Court’s conclusion that the agency’s action exceeds its statutory 
authority.   
II. 
Relief 
 
Because Plaintiffs succeed on their claim in Count I that the order exceeds the 
agency’s statutory authority, the Court need not reach Plaintiffs’ remaining claims.  
The Court turns to the appropriate relief or remedy.  Plaintiffs seek both a declaratory 
judgment and an injunction.  (ECF No. 1, ¶¶ 1–2, PageID #19.) 
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II.A. Relief Under the Administrative Procedure Act 
 
Plaintiffs lay claim to relief under the Administrative Procedure Act.  (ECF 
No. 1, ¶¶ 58–77, PageID #13–14.)  Section 706 of the APA directs that a reviewing 
court “shall hold unlawful and set aside” agency action “in excess of statutory 
jurisdiction, authority, or limitations, or short of statutory right.”  5 U.S.C. 
§ 706(2)(C).  In evaluating agency action under the APA, assuming Section 361 leaves 
an eviction moratorium to the CDC’s discretion (so-called Chevron “step zero”), the 
first step “employ[s] ‘traditional tools of statutory construction’ to determine whether 
‘Congress had an intention on the precise question at issue.’”  Tennessee Hosp. Ass’n 
v. Azar, 908 F.3d 1029, 1037 (6th Cir. 2018) (quoting Chevron, U.S.A., Inc. v. Natural 
Res. Def. Council, Inc., 467 U.S. 837, 843 n.9 (1984)).  Where, as here, the statutory 
text is clear, that is the end of the matter because the Court and the agency “must 
give effect to the unambiguously expressed intent of Congress.”  Id. (quoting Chevron, 
467 U.S. at 842–43).  Because the Court determines that the statute is unambiguous 
and, by issuing a nationwide eviction moratorium, CDC exceeded the authority 
Congress gave it in Section 361, the Court holds that action unlawful and sets it aside, 
as the APA requires. 
II.B. Injunctive Relief 
 
Where an agency exceeds its authority, the APA contemplates an injunction as 
one form of relief.  See 5 U.S.C. § 703.  In addition to success on the merits, to obtain 
an injunction Plaintiffs must also show irreparable harm, which is an “indispensable” 
prerequisite for injunctive relief.  D.T., 942 F.3d at 326.  On this score, the Court 
agrees with those that have addressed the issue in other cases and determines that 
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money damages can redress Plaintiffs’ injury (though they do not seek them here) 
such that an injunction is not appropriate.  See Chambless Enterprises, ___ F. Supp. 
3d ____, 2020 WL 7588849, at *12–14; Tiger Lily, ___ F. Supp. 3d ____, 2020 WL 
7658126, at *8–9; Brown, ___ F. Supp. 3d ____, 2020 WL 6364310, at *17–21.  
Contrary to Plaintiffs’ argument, the Court does not read Section 706 of the APA as 
mandating injunctive relief every time an agency exceeds its statutory authority.   
II.C. Relief Under the Declaratory Judgment Act 
 
The APA also envisions declaratory judgments as a remedy.  See 5 U.S.C. 
§ 703.  “[I]n a case of actual controversy within its jurisdiction,” except for certain 
circumstances not relevant here, the Court “may declare the rights and other legal 
relations of any interested party seeking such declaration, whether or not further 
relief is or could be sought.”  28 U.S.C. § 2201(a); see also Abbott Labs. v. Gardner, 
387 U.S. 136, 142 (1967). 
 
Plaintiffs here are entitled to declaratory judgment.  The Court determines 
that the Centers for Disease Control and Prevention’s orders—Temporary Halt in 
Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 
55,292 (Sept. 4, 2020) and Temporary Halt in Residential Evictions to Prevent the 
Further Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021)—exceed the agency’s 
statutory authority provided in Section 361 of the Public Health Service Act, 
42 U.S.C. § 264(a), and the regulation at 42 C.F.R. § 70.2 promulgated pursuant to 
the statute, and are, therefore, invalid.   
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CONCLUSION 
 
This case involves the limited question whether Congress has given the 
Centers for Disease Control and Prevention the authority to make and enforce a 
nationwide moratorium on evictions.  This case does not implicate broader policy 
considerations regarding such a moratorium or depend on judgments whether it 
constitutes sound public policy.  On that issue, the Court expresses no opinion.  
Indeed, such a consideration falls outside the task of interpreting the applicable 
statutes and determining their meaning.  Because of the plain meaning of 
Section 361, the Court enters judgment accordingly. 
 
SO ORDERED. 
Dated:  March 10, 2021 
 
 
J. Philip Calabrese 
United States District Judge 
Northern District of Ohio 
 
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