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Plaintiffs' Reply in Support of Motion to Clarify or Amend Judgment — Skyworks v. CDC

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Court	U.S. District Court for the Northern District of Ohio

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A plaintiffs' reply memorandum in support of their motion to clarify or amend, filed May 7, 2021 in Skyworks, Ltd. v. Centers for Disease Control and Prevention, Case No. 5:20-cv-02407-JPC, in the U.S. District Court for the Northern District of Ohio, Eastern Division. It argues the motion meets the requirements of Rule 59(e), that plaintiffs have standing to seek universal vacatur, and that a judgment setting aside agency action under APA section 706 vacates the CDC's eviction moratorium as to all affected parties rather than only the named plaintiffs. The memorandum asks the court to clarify that its opinion and order vacated the moratorium nationally or, alternatively, as to plaintiffs and affected parties within the Northern District of Ohio. It adds that the court retains discretion to limit the scope of its judgment to that district.

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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,

Plaintiff,

CENTERS FOR DISEASE CONTROL
AND PREVENTION; ROCHELLE P.
WALENSKY, in her official capacity as
Director, Centers for Disease Control and
Prevention; SHERRI A. BERGER, in her
official capacity as Acting Chief of Staff,
Centers for Disease Control and Prevention;
DEPARTMENT OF HEALTH AND
HUMAN SERVICES; NORRIS
COCHRAN, in his official capacity as acting
Secretary of Health and Human Services;
MONTY WILKINSON, in his official
capacity as Acting Attorney General of the
United States,

Defendants.

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

JUDGE J. PHILIP CALABRESE

MAGISTRATE JUDGE CARMEN E.
HENDERSON
PLAINTIFFS’ REPLY MEMORANDUM OF LAW IN SUPPORT
OF THEIR MOTION TO CLARIFY OR AMEND

TABLE OF CONTENTS

TABLE OF AUTHORITIES .......................................................................................................... ii
INTRODUCTION ...........................................................................................................................2
ARGUMENT ...................................................................................................................................5
I. Plaintiffs Have Met The Requirements of Rule 59(e) ........................................................5

II. Plaintiffs Have Standing to Seek Universal Vacatur ...........................................................6

III. The Court’s Judgment Necessarily Vacated the Eviction Moratorium as to All Affected
Parties, But the Court can Limit the Geographic Scope of Its Judgment ..........................11
CONCLUSION ..............................................................................................................................14
CERTIFICATE OF SERVICE ......................................................................................................15

TABLE OF AUTHORITIES

Page(s)
Cases
Alabama Association of Realtors, et. al, v. United States Department of Health
and Human Services, et. al,
No. 1:20-cv-03337-DLF (May 5, 2021) ....................................................................................3
Banister v. Davis,
140 S.Ct. 1698 (2020) ................................................................................................................5
Bender v. Williamsport Area School District,
475 U.S. 534 (1986) ...................................................................................................................8
Capital Area Immigrants’ Rights Coal. v. Trump,
471 F. Supp.3d 25 (D.D.C. 2020) ............................................................................................12
Chrysler Corp. v. Brown,
441 U.S. 281 (1979) .................................................................................................................11
City of Los Angeles, Calif. v. Patel,
576 U.S. 409 (2015) .................................................................................................................10
Cook County Illinois v. Wolf,
2020 WL 6393005 (N.D.Ill., Nov. 2, 2020) ............................................................................12
DHS v. Regents of the Univ. of Cal.,
––– U.S. ––––, 140 S. Ct. 1891, 207 L.Ed.2d 353 (2020) .........................................................7
U.S. ex rel. Eagleye v. TRW, Inc.,
947 F.2d 947 (6th Cir. 1991) .....................................................................................................2
FDA v. Brown & Williamson Tobacco Corp.,
529 U.S. 120 (2000) .................................................................................................................11
Foster v. DeLuca,
545 F.3d 582 (7th Cir. 2008) .....................................................................................................6
Gautreaux v. Chicago Hous. Auth.,
178 F.3d 951 (7th Cir. 1999) .....................................................................................................6
GenCorp, Inc. v. Am. Int'l Underwriters,
178 F.3d 804 (6th Cir. 1999) .....................................................................................................6
Gill v. Whitford,
138 S. Ct. 1916 (2018) .........................................................................................................4, 11

iii

Gun Owners of Am., Inc. v. Garland,
992 F.3d 446 (6th Cir. 2021) ...................................................................................................13
H & H Tire Co. v. U.S. Dep't of Transp.,
471 F.2d 350 (7th Cir. 1972) .....................................................................................................7
Hines v. Comm’r of Soc. Sec.,
414 F. Supp. 3d 1080 (S.D. Ohio 2019) ....................................................................................6
Ill. Pub. Telecomms. Ass’n v. FCC,
123 F.3d 693 (D.C. Cir. 1997) ...................................................................................................6
Iowa League of Cities v. E.P.A.,
711 F.3d 844 (8th Cir. 2013) .....................................................................................................7
Lewis v. Casey,
518 U.S. 343 (1996) .........................................................................................................8, 9, 10
Louisiana Public Service Comm’n v. FCC,
476 U.S. 355 (1986) .................................................................................................................10
Lujan v. National Wildlife Federation,
497 U.S. 871 (1990) .................................................................................................................12
Mayor & City Council of Baltimore v. Azar,
No. 19- 1103, 2020 WL 1873947 (D. Md. Apr. 15, 2020) ......................................................14
Missouri v. Jenkins,
515 U.S. 70 (1995) .....................................................................................................................8
Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139 (2010) .................................................................................................................12
Morrow v. Harwell,
768 F.2d 619 (5th Cir. 1985) ...................................................................................................13
Nat'l Mining Ass'n v. U.S. Army Corps of Eng'rs,
145 F.3d 1399 (D.C. Cir. 1998) .......................................................................................3, 6, 12
O.A. v. Trump,
404 F. Supp. 3d 109 (D.D.C. 2019) .................................................................................3, 6, 11
Ohio v. Akron Ctr. for Reprod. Health,
497 U.S. 502 (1990) .................................................................................................................10
Powell v. McCormack,
395 U.S. 486 (1969) .................................................................................................................12

Rowe v. Reg.,
No. 1:07-CV-20, 2008 WL 2009186 (E.D. Tenn. May 8, 2008) ..............................................5
Singh Mgmt. Co., LLC v. Singh Dev. Co., Inc.,
774 Fed. App'x 921 (6th Cir. 2019) .......................................................................................5, 6
Spokeo v. Robins,
136 S. Ct. 1540, 1550 (2016) ...................................................................................................11
State of N. J., Dep't of Env't Prot. v. U.S. Env't Prot. Agency,
626 F.2d 1038 (D.C. Cir. 1980) .................................................................................................7
Tennessee Hosp. Ass'n v. Azar,
908 F.3d 1029 (6th Cir. 2018) ...................................................................................................7
Town of Chester, N.Y. v. Laroe Ests., Inc.,
137 S. Ct. 1645 (2017) ...............................................................................................................8
U.S. Steel Corp. v. U.S. E.P.A.,
595 F.2d 207 (5th Cir. 1979) .....................................................................................................7
Empire Health Found. ex rel. Valley Hosp. Med. Ctr. v. Azar,
958 F.3d 873 (9th Cir. 2020) .....................................................................................................6
Rules
Fed. Rule of App. Proc., Rule 4(a)(4)(B)(i) .....................................................................................2
Other Authorities
Power and Discretion of Court, 11 Wright, A. Miller & M. Kane, Fed. Prac. &
Proc. Civ. § 2803 (3d ed. 2012) .................................................................................................5

INTRODUCTION
Plaintiffs’ motion to clarify or amend raises two fundamental issues.1 First, what is the
effect of a judgement setting aside agency action under APA section 706 for lack of statutory
authority? As Plaintiffs argued in their opening brief, the plain meaning of section 706 is that “set
aside” means “vacate” and the effect of this Court’s decision was necessarily to vacate the CDC’s
eviction moratorium at its source, rather than its destination. That is, by ruling that the CDC lacked
the authority to promulgate the moratorium, this Court necessarily declared that the CDC lacked
the authority to enforce the moratorium against any party, not just the Plaintiffs. Second, assuming
Plaintiffs are correct, what is the proper geographic scope of the Court’s judgment? Plaintiffs
believe it is national, but as they argued in their motion, this Court possesses the discretion to limit
the reach of its judgment to the Northern District of Ohio.
In response, Defendants conflate these two points and raise a host of irrelevant and straw
man arguments. In an all-or-nothing gambit, they claim that the only two choices this Court faces
are nationwide vacatur or invalidating the eviction moratorium only as to the Plaintiffs. Thus,
Defendant’s claim that “Plaintiffs’ position would require district courts to enter nationwide relief
by default whenever they find agency action unlawful.” ECF #60 at 5. But Plaintiffs admitted in
their opening brief not only that the Court has discretion to limit the geographic scope of its
judgment, but that there are some circumstances in which it is appropriate to invalidate an agency
action only as to certain parties. See ECF #58 at 5. This, however, is not such a case. Plaintiffs’

1 Today, May 7, 2019, the Defendants appealed this Court’s judgment to the Sixth Circuit.
Plaintiffs are informed that Defendants intend to file a motion asking the Sixth Circuit to hold the
appeal in abeyance until this Court resolves the pending motion to clarify. Plaintiffs have
consented to this proposed motion. This Court retains jurisdiction to decide Plaintiff’s motion to
clarify. See Fed. Rule of App. Proc., Rule 4(a)(4)(B)(i) (providing that where there is a pending
Rule 59 motion, a notice of appeal becomes effective “when the order disposing the last remaining
such motion is entered.”). E.g., U.S. ex rel. Eagleye v. TRW, Inc., 947 F.2d 947 (6th Cir. 1991)
(holding an appeal in abeyance pending resolution of a pending district court motion).

challenge is necessarily a facial challenge to the CDC’s authority, and the “ordinary remedy” in
such a case is to vacate the agency action as to all affected parties. Indeed, just two days ago, a
district court in the District of Columbia held the CDC’s moratorium unlawful under the statute
and set it aside as to all affected parties rather than just the plaintiffs in the case. See Alabama
Association of Realtors, et. al, v. United States Department of Health and Human Services, et. al,
No. 1:20-cv-03337-DLF (May 5, 2021).2 Defendants’ claim that this is somehow a drastic or
unorthodox remedy in APA cases is simply not true.
Defendants also spend a great deal of space in their brief arguing against nationwide
injunctions—a point that is not at issue here. Plaintiffs have not asked this Court to reconsider its
rejection of an injunction in this case, but to clarify that its declaration setting aside the moratorium
applies, as it must naturally apply, to all affected parties, at least within the Northern District of
Ohio. Defendants ignore the difference between an injunction—which courts have often
considered to be a “drastic remedy”—and a declaratory judgment.
Consistent with their effort to avoid Plaintiffs’ arguments, Defendants also claim that Rule
59(e) prevents the Court from issuing the requested relief, on the grounds that Plaintiffs cannot
raise a new issue that they allegedly failed to raise before. But this is wrong for two reasons. First,
Plaintiffs did make the point during the briefing on the preliminary injunction that universal

2 The Court in Alabama Ass’n of Realtors has since administratively stayed its order pending
Defendants’ motion for stay pending appeal. But, in doing so it noted that
[A]s the Court has explained . . . the law in this Circuit is clear: where a court
concludes that an agency has exceeded its statutory authority, as this Court has done
here . . . vacatur of the rule is the proper remedy in this Circuit. See Nat'l Mining
Ass'n v. U.S. Army Corps of Eng'rs, 145 F.3d 1399, 1409 (D.C. Cir. 1998). Based
on this clear authority, courts in this Circuit do not restrict vacatur only to those
plaintiffs before the Court. See, e.g., O.A. v. Trump, 404 F. Supp. 3d 109, 152-53
(D.D.C. 2019). Indeed, the government has been unable to point to a single case in
which a court in this Circuit has done so.
Alabama Ass’n of Realtors, No. 1:20-cv-03337-DLF, Minute Order (May 6, 2021).

vacatur was a proper remedy. ECF #33 at 1-2, fn. 1. Second, Plaintiffs’ view is that the Court’s
judgment necessarily set aside the moratorium as to all affected parties. See ECF #57 at 3 .
Obviously, this Court can interpret its own order, but there is nothing on the face of it that suggests
it only applies to Plaintiffs—indeed, it strongly suggests the opposite. See, e.g., ECF #55. at 29,
30. Defendants contend otherwise, but their argument proceeds from a flawed premise—that even
in a case in which a court has held an agency lacks statutory authority, the remedy should be
confined to the plaintiffs. But that position is incorrect, and it ignores the many cases Plaintiffs’
cited for the proposition that universal vacatur is the “ordinary remedy” under section 706. What
prompted Plaintiffs’ motion was the Defendants’ decision to treat the Court’s judgment more
narrowly than it logically applies. That is a “new fact” that would qualify as grounds to clarify or
amend its judgment under Rule 59(e). But the Court has the discretion to do so in any event.
Proceeding on the same flawed premise, Defendants claim Plaintiffs lack standing to seek
universal vacatur. But this position confuses standing to sue with the proper scope of the remedy
that follows from a judgment in a plaintiff’s favor. The cases Defendants themselves cite make
clear that remedies should address “the inadequacy that produced the injury in fact that the plaintiff
has established.” Gill v. Whitford, 138 S. Ct. 1916, 1931 (2018) (citation omitted) (emphasis
added). Here, the “inadequacy” that produced Plaintiffs’ injury was the fact that the CDC lacks the
statutory authority to ban evictions. If it had been something more limited—for example, the
application of the moratorium to certain of Plaintiffs’ tenants who did not meet its requirements—
then the situation would be different. But here, the Court concluded—properly and, now,
consistently with two other district courts and a panel of the Sixth Circuit—that the CDC’s Order
was ultra vires. That was necessarily a facial ruling and the proper remedy is to vacate the
moratorium at its source, not its destination.

Finally, Defendants contend that equitable principles prevent vacatur beyond the Plaintiffs.
But this defies the plain language of APA section 706, the purpose of the APA, and the many cases
that have held that vacatur is the “ordinary remedy” when agency action is held unlawful.
ARGUMENT
I.
Plaintiffs Have Met The Requirements of Rule 59(e)
As Plaintiffs explained in their motion to clarify or amend, ECF #57 at 4, “[t]he Federal
Rules grant district courts broad discretion to ‘alter or amend a judgment’ or to grant ‘relief from
a judgment or order.’” Singh Mgmt. Co., LLC v. Singh Dev. Co., Inc., 774 Fed. App'x 921, 925
(6th Cir. 2019) (citing rules 59(e) and 60(a) and (b)). This includes the discretion to clarify
judgments. See id. In particular, Rule 59(e) allows courts to reconsider or clarify “matters properly
encompassed in a decision on the merits.” Banister v. Davis, 140 S.Ct. 1698, 1703 (2020). See
also Rowe v. Reg., No. 1:07-CV-20, 2008 WL 2009186, at *24 (E.D. Tenn. May 8, 2008) (Federal
courts have “inherent authority and discretion to fashion an appropriate remedy…”); Power and
Discretion of Court, 11 Wright, A. Miller & M. Kane, Fed. Prac. & Proc. Civ. § 2803 (3d ed. 2012)
(same).
The question Plaintiffs’ motion raises is whether the Court’s March 12 decision on the
merits set aside the CDC’s eviction moratorium as to all affected parties or only to the Plaintiffs.
Plaintiffs believe the Court’s ruling necessarily vacated the CDC’s Orders as to everyone, but that
question was not at issue until the Defendants’ interpreted the Court’s ruling to apply only the
Plaintiffs. While it is true that the Defendants argued against nationwide relief in their response to
Plaintiffs’ motion for preliminary injunction, see, ECF #23 at 36, and Plaintiffs argued to the
contrary in their reply, see ECF #33 at 14-20, the issue was not litigated beyond that brief exchange
in the preliminary injunction briefs. And it did not come up again when the Court converted that

motion into one on the merits. Thus, the issue was not litigated in any meaningful way and the
Court did not specifically address it in the March 12 Order. The scope of the Court’s judgment is
thus an appropriate issue for a motion to clarify or amend. See Singh Mgmt. Co., 774 Fed. App'x
at 925 (holding that courts have the authority to clarify judgments); Gautreaux v. Chicago Hous.
Auth., 178 F.3d 951, 958 (7th Cir. 1999) (same). None of the cases Defendants cite suggest
otherwise. See Hines v. Comm’r of Soc. Sec., 414 F. Supp. 3d 1080, 1081 (S.D. Ohio 2019)
(denying motion for relief under Rule 59(e) where it was premised on a disagreement with the
Court’s application of the law to the facts); Foster v. DeLuca, 545 F.3d 582, 584 (7th Cir. 2008)
(reversing district court’s conclusion that Rule 59(e) motion was inappropriate because the
circumstances were such that the issue raised in the motion could not have been addressed
previously); GenCorp, Inc. v. Am. Int'l Underwriters, 178 F.3d 804, 834 (6th Cir. 1999) (denying
motion under Rule 59(e) because the alleged new evidence was evidence the movant itself created
after judgment).
II.
Plaintiffs Have Standing to Seek Universal Vacatur
Defendants face a serious hurdle in claiming that Plaintiffs’ lack standing to seek universal
(or district-wide) vacatur: If they are correct, then a large number of cases have been wrongly
decided—indeed, have missed a rather obvious infirmity in their remedies—for a long time. That
would include many cases in the D.C. Circuit that have held universal vacatur is the ordinary result
when agency action is found unlawful. See, e.g., Nat’l Mining Ass’n v. U.S. Army Corps of Eng’rs,
145 F.3d 1399, 1409 (D.C. Cir. 1998); Ill. Pub. Telecomms. Ass’n v. FCC, 123 F.3d 693, 693 (D.C.
Cir. 1997); O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). The Ninth Circuit follows the
same rule. See, e.g., Empire Health Found. ex rel. Valley Hosp. Med. Ctr. v. Azar, 958 F.3d 873,
886 (9th Cir. 2020) (“[W]hen a reviewing court determines that agency regulations are unlawful,

the ordinary result is that the rules are vacated—not that their application to the individual
petitioners is proscribed.”) (internal quotation marks omitted).
It would also include many cases in which courts did not specifically discuss the breadth
of the remedy, but simply vacated agency action beyond the parties in the case. See, e.g., DHS v.
Regents of the Univ. of Cal., ––– U.S. ––––, 140 S. Ct. 1891, 1901, 207 L.Ed.2d 353 (2020)
(holding that DHS's rescission of the Deferred Action for Childhood Arrivals program “must be
vacated” due to the agency's violation of the APA); Tennessee Hosp. Ass'n v. Azar, 908 F.3d 1029,
1042 (6th Cir. 2018) (“If an agency attempts to issue a legislative rule without abiding by the
APA’s procedural requirements, the rule is invalid.”); Iowa League of Cities v. E.P.A., 711 F.3d
844, 877-78 (8th Cir. 2013) (vacating an EPA rule as procedurally invalid and a separate EPA rule
as in excess of statutory authority, and signaling in its analysis that the decision had implications
generally for “regulated entities”); H & H Tire Co. v. U.S. Dep't of Transp., 471 F.2d 350, 355-56
(7th Cir. 1972) (“When an administrative decision is made without consideration of relevant
factors it must be set aside.”) (internal quotation marks omitted); State of N. J., Dep't of Env't Prot.
v. U.S. Env't Prot. Agency, 626 F.2d 1038, 1050 (D.C. Cir. 1980) (setting aside agency action after
finding a notice-and-comment violation and remanding the record to the agency); U.S. Steel Corp.
v. U.S. E.P.A., 595 F.2d 207, 210 (5th Cir. 1979) (setting aside an EPA rule because of procedural
violations and remanding to the agency for it to “repromulgate” the rule with “proper public notice
and opportunity for comment.”).
According to Defendants’ argument, all of these decisions are flawed because the courts
failed to consider that “standing is not dispensed in gross.” See ECF #60 at 3.
But Defendants are incorrect. They are conflating standing to assert a given claim with the
proper scope of the remedy that follows from a ruling in a plaintiff’s favor. Standing is focused on

whether the plaintiff is the proper party to assert a given claim. It accomplishes this by ensuring
that the plaintiff is injured by the action of which he or she complains. Bender v. Williamsport
Area School District, 475 U.S. 534 (1986). In this way, standing ensures that courts stay within
the bounds of Article III, and resolve cases and controversies, rather than policy questions that are
properly left to the political branches. Town of Chester, N.Y. v. Laroe Ests., Inc., 137 S. Ct. 1645,
1650 (2017).
To be sure, plaintiffs must demonstrate standing for every claim to relief they assert. Id. at
1651 (holding that an intervenor seeking money damages for himself, separate from the damages
plaintiffs sought, must have standing on his own). But that is a matter of showing that they have
suffered concrete and particularized harm as a result of the legal inadequacy or infirmity at issue
in each claim. See Lewis v. Casey, 518 U.S. 343, 357 (1996). So long as they have done so—and
Plaintiffs clearly have in this case—the scope of the remedy is determined by what is necessary to
address that legal inadequacy. See Missouri v. Jenkins, 515 U.S. 70, 88, 89 (1995) (“[T]he nature
of the . . . remedy is to be determined by the nature and scope of the constitutional violation”
(citation and internal quotation marks omitted)).
Lewis is instructive on this point—not least, because it is the source of the two primary
quotes on which Defendants rely: that “standing is not dispensed in gross,” and that the remedy
must “be limited to the inadequacy that produced the injury in fact that the plaintiff has
established.” In Lewis, several inmates filed a class action against the Arizona Department of
Corrections claiming they were denied access to the courts because the defendants failed to provide
them with facilities necessary to prepare and file legal papers. 518 U.S. at 346-47. The district
court found for the plaintiffs and issued an injunction requiring sweeping changes to the prison
system’s legal facilities. Id. at 347-48. Although the Supreme Court agreed that the defendants

failed to provide adequate facilities, it disagreed with the breadth of the district court’s injunction.
Id. at 357. The issue, in the Court’s view, was fundamentally one of standing and the extent of the
legal infirmity that caused the plaintiffs’ injury. As the Court put it,
The actual-injury requirement would hardly serve the purpose we have described
above—of preventing courts from undertaking tasks assigned to the political
branches—if once a plaintiff demonstrated harm from one particular inadequacy
in government administration, the court were authorized to remedy all
inadequacies in that administration. The remedy must of course be limited to the
inadequacy that produced the injury in fact that the plaintiff has established.
Id. at 357 (emphasis added). The Court then examined the record for any inadequacies that actually
caused a legally cognizable injury to the plaintiffs, and found only two. The defendants had failed
to provide adequate services to illiterate and non-English speaking prisoners. Id. at 356. “Was that
inadequacy widespread enough to justify systemwide relief?” Id. at 358. No, was the Court’s
answer, because the defendants could remedy the problem by providing these prisoners with
targeted services. Id. at 360.
Simply put, the breadth of the remedy turns on the nature of the legal inadequacy that
caused plaintiff’s injury. Although the Court in Lewis concluded that the legal inadequacy was not
systemwide and therefore the remedy should have been narrow, the principle of the case is clear:
If the inadequacy is systemwide, then the remedy is properly systemwide as well. The Court’s
statement that “standing is not dispensed in gross,” understood in context, reenforces the point.
The Court made that statement in answer to the dissent’s claim that any injury was sufficient to
justify the sweeping injunction the district court ordered. As the Court stated, the dissent
concludes, in gross, that [plaintiffs’] injuries are “sufficient to satisfy any
constitutional [standing] concerns.” But standing is not dispensed in gross. If the
right to complain of one administrative deficiency automatically conferred the right
to complain of all administrative deficiencies, any citizen aggrieved in one respect
could bring the whole structure of state administration before the courts for review.
That is of course not the law. As we have said, “[n]or does a plaintiff who has been
subject to injurious conduct of one kind possess by virtue of that injury the

necessary stake in litigating conduct of another kind, although similar, to which he
has not been subject.”
Id. at 358 n. 6. The Court uses different terms throughout its discussion (“inadequacy,”
“administrative deficiency”) but they all designate a legal problem that caused the plaintiff the
harm of which he complains. And the conclusion that follows is that the remedy must be as narrow
or broad as is necessary to address that legal problem.
Here, the legal problem of which Plaintiffs complained—and which caused their injury—
was the CDC’s lack of statutory authority to impose an eviction moratorium. Plaintiffs are not
seeking to bootstrap a complaint about a singular “administrative deficiency” into standing to
challenge a host of things they don’t like. The claim on which they prevailed was a challenge to
one indivisible problem: the CDC’s lack of statutory authority. That was necessarily a
“systemwide” legal problem, as it did not turn on anything unique to the Plaintiffs. Plaintiffs
therefore had standing to seek a systemic remedy, which is to vacate the eviction moratorium
across the board.
Plaintiffs’ claim is akin to a facial challenge to a statute. In such cases, where the plaintiff
shows that there is no set of facts to which the statute can lawfully be applied, the proper remedy
is to strike it down on its face. See, e.g., City of Los Angeles, Calif. v. Patel, 576 U.S. 409, 415
(2015) (allowing a facial challenge based on Fourth Amendment and striking down the offending
law in its entirety); Ohio v. Akron Ctr. for Reprod. Health, 497 U.S. 502, 514 (1990) (explaining
that “because appellees are making a facial challenge to a statute, they must show that ‘no set of
circumstances exists under which the Act would be valid’”). Here, the argument for universal
vacatur is even stronger than that for a facial attack on a statute, because vacatur is what section
706 of the APA demands and what the Court’s ruling naturally implies. See, e.g., Louisiana Public

Service Comm’n v. FCC, 476 U.S. 355, 374 (1986) (“[A]n agency literally has no power to act . .
. unless and until Congress confers power upon it.”).
The cases on which Defendants rely are not to the contrary. In Gill v. Whitford, the Court
concluded that plaintiffs who were challenging a gerrymandering scheme on the grounds that it
diluted votes had to show some devaluing of their own votes to maintain their claims. 138 S. Ct.
1916, 1934 (2018). Similarly, Spokeo v. Robins stands for the proposition that a named plaintiff in
a class action must show injury to himself to possess standing rather than relying on injuries to
members of the class. 136 S. Ct. 1540, 1550 (2016). Here, Plaintiffs have clearly shown an injury
to themselves, and for the reasons stated above, that entitles them to seek universal vacatur in this
case.
III.
The Court’s Judgment Necessarily Vacated the Eviction Moratorium as to All
Affected Parties, But the Court can Limit the Geographic Scope of Its Judgment
Universal vacatur is the “ordinary result” when agency action lacks statutory authority for
the simple reason that it is a properly “systemwide” remedy to a “systemwide” problem. Since
agencies lack any power to act without Congressional authorization, FDA v. Brown & Williamson
Tobacco Corp., 529 U.S. 120, 161 (2000), and since the APA’s purpose is to establish the
principles and procedures by which agencies must act, Chrysler Corp. v. Brown, 441 U.S. 281,
313 (1979), it would be strange if a court were to declare that an agency can continue to enforce
agency action that lacks statutory authority. A district court in the D.C. Circuit has made precisely
this point:
As a practical matter, . . . how could [a] [c]ourt vacate [a challenged] Rule with
respect to the . . . plaintiffs in [a] case without vacating the Rule writ large? What
would it mean to ‘vacate’ a rule as to some but not other members of the public?
What would appear in the Code of Federal Regulations?”
O.A. v. Trump, 404 F. Supp. 3d 109, 153 (D.D.C. 2019). Indeed, if Defendants were correct, even
when an agency violated notice and comment requirements, a rule would be vacated only as to the

parties who challenged it, and the agency would presumably not have to follow notice and
comment procedures until every affected party in the nation sued in every circuit. But that result
would make no sense. See Capital Area Immigrants’ Rights Coal. v. Trump, 471 F. Supp.3d 25,
58-59 (D.D.C. 2020) (rejecting defendant’s request to vacate rule that violated notice and comment
requirements only as to plaintiffs). Universal vacatur is the proper remedy in a case such as this
because it is the only remedy that makes sense. See, e.g., National Mining Assoc., 145 F.3d at 1409
(relying on Justice Blackman’s concurrence in Lujan v. National Wildlife Federation, 497 U.S.
871, 913 (1990), for the principle that where the relevant agency action consists “of a rule of broad
applicability” a prevailing plaintiff who was injured by the rule is entitled to “‘programmatic’ relief
that affects the rights of parties not before the court.”); Cook County Illinois v. Wolf, 2020 WL
6393005, at *3 (N.D.Ill., Nov. 2, 2020) (holding universal vacatur is the ordinary remedy under
APA section 706 and discussing cases).
Defendants attempt to sidestep these common sense points, primarily by arguing against
nationwide injunctions. But Plaintiffs are not now asking for a nationwide injunction, they are
asking the Court to make clear that its declaration setting aside the eviction moratorium applies to
all affected parties, at least within the Northern District of Ohio. A declaration under section 706
is a very different remedy from an injunction. See, e.g., Monsanto Co. v. Geertson Seed Farms,
561 U.S. 139, 165-66 (2010) (“An injunction is a drastic and extraordinary remedy, which should
not be granted as a matter of course. If a less drastic remedy (such as partial or complete vacatur
of [the agency's] deregulation decision) was sufficient to redress [the challengers’] injury, no
recourse to the additional and extraordinary relief of an injunction was warranted.”); Powell v.
McCormack, 395 U.S. 486, 499 (1969) (observing that a declaratory judgment might be used as a
predicate for further relief, but is not as strong a remedy as injunctive relief); Capital Area

Immigrants’ Rights Coal., 471 F. Supp.3d at 59 (distinguishing between a nationwide injunction
and vacatur under section 706).
One important difference is that an defendant must follow an injunction under threat of
contempt of court. See, e.g., Morrow v. Harwell, 768 F.2d 619, 627 (5th Cir. 1985) (“There is no
question but that the passive remedy of a declaratory judgment is far less intrusive into state
functions than injunctive relief that affirmatively commands specific future behavior under the
threat of the court’s contempt powers.”). A declaratory judgment does not have the same effect.
As a result, the Defendants are wrong in asserting that a declaration vacating the moratorium
universally would prevent other courts from deciding differently. Other courts would be free to
agree or disagree with this Court’s decision, as other courts are always free to disagree with
decisions that do not bind them.
As a result, the cases on which Defendants rely that involve the propriety of nationwide
injunctions are inapposite. See ECF 60# at 5-8. To be sure, as Plaintiffs recognized in their opening
brief, there may be prudential reasons for the Court to limit the scope of its declaration to the
Northern District of Ohio. But whether this Court decides to do so, there are no circumstances in
which the Court’s judgment should apply only to the plaintiffs, for the reasons Plaintiffs have
already stated. Indeed, the Sixth Circuit’s decision in Gun Owners of Am., Inc. v. Garland, 992
F.3d 446 (6th Cir. 2021), supports Plaintiffs’ interpretation of section 706. In discussing the proper
scope of the district court’s injunction, the Sixth Circuit stated, “we do not decide the scope of the
injunction, except to say that the scope may not exceed the bounds of the four states within the
Sixth Circuit’s jurisdiction and, of course, encompasses the parties themselves.” Id. at 474. The
Court’s recognition that an injunction could apply within the Sixth Circuit in addition to the parties
themselves would have made no sense if it agreed with the Defendants’ view that a remedy under

APA section 706 must be limited to the plaintiffs alone. Cf. Mayor & City Council of Baltimore v.
Azar, No. 19- 1103, 2020 WL 1873947, at *3–4 (D. Md. Apr. 15, 2020) (concluding that vacatur
should not apply nationally, but applying it to all affected parties within the State of Maryland).
Finally, Defendants contend that Plaintiff’s argument disrupts traditional principles of
equity. But as Plaintiffs pointed out in their opening brief, this ignores fact that Congress replaced
traditional principles of equity when it passed the APA, at least with respect to the scope of relief
under section 706. Indeed, the Defendants’ argument, if accepted, would overturn decades of cases
vacating agency action and defy the structure and purpose of the APA.
CONCLUSION
For the forgoing reasons, this Court should clarify that its March 10 Opinion and Order
vacated the CDC’s eviction moratorium nationally, or, in the alternative, with respect to the
Plaintiffs and affected parties within the Northern District of Ohio.
DATED: May 7, 2021

Respectfully submitted:

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

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

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

*Pro Hac Vice

Attorneys for Plaintiffs

CERTIFICATE OF SERVICE

I hereby certify that on May 7, 2021, I electronically filed the foregoing document with
the Clerk of the Court via the CM/ECF system, which will cause a copy to be served upon
counsel of record.

By /s/ STEVEN M. SIMPSON
STEVEN M. SIMPSON

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Plaintiffs' Reply in Support of Motion to Clarify or Amend Judgment — Skyworks v. CDC

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