Plaintiffs' Reply in Support of Preliminary Injunction — Terkel v. CDC

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IN THE UNITED STATES DISTRICT COURT 
FOR THE EASTERN DISTRICT OF TEXAS 
TYLER DIVISION 
 
LAUREN 
TERKEL; 
PINEYWOODS 
ARCADIA HOME TEAM, LTD; LUFKIN 
CREEKSIDE APARTMENTS, LTD; LUFKIN 
CREEKSIDE 
APARTMENTS 
II, 
LTD; 
LAKERIDGE 
APARTMENTS, 
LTD; 
WEATHERFORD 
MEADOW 
VISTA 
APARTMENTS, LP; and MACDONALD 
PROPERTY MANAGEMENT, LLC; 
  
Plaintiffs, 
 
  
 v. 
 
CENTERS FOR DISEASE CONTROL AND 
PREVENTION; ROBERT R. REDFIELD, in his 
official capacity as Director of the Centers for 
Disease 
Control 
and 
Prevention; 
NINA 
WITKOFSKY, in her official capacity as Acting 
Chief of Staff for the Centers for Disease Control 
and 
Prevention; 
UNITED 
STATES 
DEPARTMENT OF HEALTH AND HUMAN 
SERVICES; and ALEX AZAR, in his official 
capacity as Secretary of the Department of 
Health and Human Services; 
  
Defendants. 
 
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CIVIL ACTION NO. 6:20-cv-564-JCB 
      JUDGE BARKER 
 
 
 
ORAL ARGUMENT REQUESTED 
 
 
 
 
 
PLAINTIFFS’ REPLY IN SUPPORT OF  
MOTION FOR PRELIMINARY INJUNCTION 
 
 
 

1 
Plaintiffs1 file this reply in support of their motion for preliminary injunction against 
Defendants Centers for Disease Control and Prevention, et al. (collectively, “the CDC”).  The 
CDC’s order challenged in this case, mandating a moratorium on evictions (the “CDC Order”), 
should be preliminarily enjoined. 
SUMMARY OF ARGUMENT 
Plaintiffs are substantially likely to prevail on the merits here because they have correctly 
explicated the current state of Necessary and Proper Clause jurisprudence and effectively 
demonstrated the application of that precedent to the instant case.  Any connection between the 
activities regulated under the Order and interstate commerce is far too tenuous to pass the 
substantial effects test.  The Order also lacks a jurisdictional hook, findings, and a limiting 
principle sufficient to justify it as a legitimate exercise of federal power.  Finally, even if the Order 
could be said to be “necessary,” it is in no way “proper.”  
Nor are the CDC’s attempts to downplay Plaintiffs’ irreparable injuries effective.  First, 
the CDC fails to address Plaintiffs’ argument that they have suffered irreparable injury based on 
the CDC’s sovereign immunity from suits for damages.  Further, the CDC relies almost exclusively 
on inapposite out-of-circuit district court decisions that do not feature the same allegations of harm 
as those in this case.  Finally, the CDC incorrectly asserts that per se irreparable injury can only 
involve violations of individual constitutional rights, but not structural constitutional protections—
invoking a false distinction that the Fifth Circuit has specifically rejected. 
Plaintiffs also meet the remaining two prongs for granting a preliminary injunction.  
Despite the CDC’s attempt to focus on Plaintiffs’ very real personal financial harm, the more 
                                                          
1  
Plaintiffs are Lauren Terkel, Pineywoods Arcadia Home Team, Ltd. (“Pineywoods”), Lufkin Creekside 
Apartments, Ltd. (“Creekside”), Lufkin Creekside Apartments II, Ltd. (“Creekside II”), Lakeridge Apartments, Ltd. 
(“Lakeridge”), Weatherford Meadow Vista Apartments, Ltd. (“Meadow Vista”), and MacDonald Property 
Management, LLC (“MacDonald”) (collectively, the “Plaintiffs”). 

2 
relevant injury to these inquiries is the paramount public interest in seeing the government comply 
with constitutional guarantees.  When balanced against injunctive relief that is limited to only the 
instant Plaintiffs, the balance of equities tips decidedly in Plaintiffs’ favor. 
Because the CDC’s flawed approach requires a complete rewrite of Necessary and Proper 
and Commerce Clause jurisprudence, fails to recognize the importance and urgency of vindicating 
legitimate constitutional claims, and assumes that the public interest is whatever the government 
says it is, this Court should grant Plaintiffs’ Motion. 
ARGUMENT 
Plaintiffs satisfy all four elements2 for a preliminary injunction: 1) a substantial likelihood 
that the movant will ultimately prevail on the merits; (2) a substantial threat that the movant will 
suffer irreparable injury if the injunction is not granted; (3) the threatened injury to the movant 
outweighs whatever damage the proposed injunction may cause the opposing party; and (4) 
granting the injunction is not adverse to the public interest.  Dialysis Patient Citizens v. Burwell, 
No. 4:17-CV- 16, 2017 U.S. Dist. LEXIS 10145 at *6 (E.D. Tex. Jan. 25, 2017) (citing Canal 
Auth. Of the State of Fla. v. Callaway, 489 F.2d 567, 572 (5th Cir. 1974)).3  In applying these 
                                                          
2  
The CDC disputes that the Court may employ a “sliding scale” approach and disputes the continued viability 
of Fla. Med. Ass’n, Inc. v. U.S. Dep’t of Health, Ed. & Welfare, 601 F.2d 199, 203 n.2 (5th Cir. 1979).  Dkt. #11, CDC 
Memo. at 10 n.2.  But courts in this Circuit continue to cite Florida Medical for that proposition.  See, e.g., Texas v. 
United States, 328 F. Supp. 3d 662, 737 (S.D. Tex. 2018) (Hanen, J.) (“the law allows a lesser level of precision and 
proof [of irreparable injury] in a case where the proof of damages is clear and where the movant has clearly shown a 
likelihood of success on the merits.  Fla. Med. Ass’n. Inc. v. U.S. Dep’t of Health, Educ. & Welfare, 601 F.2d 199, 
203 n.2 (5th Cir. 1979).”). 
3  
The CDC incorrectly describes the preliminary injunction sought here as seeking to alter the status quo.  Dkt. 
#11, CDC Memo. at 10.  The relevant time period is before the action that is challenged occurred (here, the issuance 
of the CDC Order): 
It is settled that the issuance of a prohibitory injunction freezes the status quo and is 
intended to “preserve the relative positions of the parties until a trial on the merits can be 
held.”  See Wenner v. Tex. Lottery Comm’n, 123 F.3d 321, 326 (5th Cir. 1997) (citing 
Univ. of Tex. v. Camenisch, 451 U.S. 390, 395, 101 S. Ct. 1830, 68 L. Ed. 2d 175 (1981)).  
Generally, the status quo is defined as the “‘last peaceable uncontested status’ existing 
between the parties before the dispute developed.”  See Nova Health Sys. v. Edmondson, 
460 F.3d 1295, 1298 n.5 (10th Cir. 2006). 
Pendergest-Holt v. Certain Under Writers at Lloyd's of London, 681 F. Supp. 2d 816, 821 n.4 (S.D. Tex. 2010). 

3 
elements, the CDC approach can be summed up as advancing the following poorly supported 
assertions: (1) activities with any economic effect are ipso facto interstate commerce; (2) injunctive 
relief is always inappropriate for constitutional injuries if there is any chance—however remote—
that a plaintiff may be able to recover damages at some point in the future; and (3) the balance of 
equities and the public interest always favor the government when it claims a public health 
emergency. 
I. 
Plaintiffs Are Likely to Succeed on the Merits. 
To establish a likelihood of success on the merits, Plaintiffs need not prove their case in 
full: “Even some likelihood of success can be enough to support the issuance of a preliminary 
injunction.”  Ass'n of Taxicab Operators, USA v. City of Dall., 760 F. Supp. 2d 693, 696 (N.D. 
Tex. 2010).  Plaintiffs easily meet their burden here.  The CDC’s response would effectively 
require this Court to rewrite Commerce Clause jurisprudence into a single-step test where any 
activity that may affect interstate commerce is ipso facto within federal control.  Given this novel 
legal theory, preliminary injunctive relief is especially proper in this case. 
A. 
The CDC Misinterprets the Substantial Effects Test. 
 
There is no dispute that the CDC Order is constitutionally only permissible—if at all—
under the third Lopez category—i.e., the “substantial effects” test.  United States v. Lopez, 514 
U.S. 549, 558-59 (1995).  The Parties differ on how that test should be applied. 
The Parties’ briefing provides three potential frameworks for the substantial effects test—
only two of which are defensible.  The first is the older Commerce Clause approach from cases 
like Lopez and United States v. Morrison, 529 U.S. 598 (2000).  Under that framework, the court 
evaluates each of the four Morrison factors to determine whether the CDC Order meets the 
substantial effects test.  While this framework is incomplete for the reasons explained by Justice 

4 
Scalia in Gonzales v. Raich, 545 U.S. 1, 33-42 (2005) (Scalia, J., concurring), it finds support in 
older pre-Raich Supreme Court and Fifth Circuit precedent, see, e.g., GDF Realty Invs., Ltd. v. 
Norton, 326 F.3d 622, 628 (5th Cir. 2003); Groome Res., Ltd. v. Par. of Jefferson, 234 F.3d 192, 
204 (5th Cir. 2000).  To the extent that this Court finds that the Raich opinion did not sufficiently 
clarify the incomplete nature of that older approach, such a framework could be applied here.4 
The second potential framework is the Necessary and Proper Clause approach adopted in 
Raich and explained in Plaintiffs’ opening brief.  Because this approach holds that cases like Lopez 
and Morrison were Necessary and Proper Clause cases, it also begins with the four Morrison 
factors but then adds the additional step of determining whether the regulation is “proper.”  Nat’l 
Fed’n of Indep. Bus. v. Sebelius, 567 U.S. 519, 560 (2012) (N.F.I.B.); see also Raich, 545 U.S. at 
39 (Scalia, J., concurring).  As explained by Justice Scalia in Raich, this framework is more 
consistent with the text of the Constitution and better explains the evidence-based, federalism-
sensitive rational basis scrutiny applied in substantial effects cases like Lopez and Morrison.  
Raich, 545 U.S. at 34, 38-39.5  That framework should be applied here.6 
The third potential framework is the single-step, no-evidence rational basis test proposed 
by the CDC.  Under the CDC’s approach, the primary question is whether the regulation affects 
                                                          
4  
For example, the Tenth Circuit continues to follow the traditional Commerce Clause approach that is 
independent of the Necessary and Proper Clause.  See People for the Ethical Treatment of Prop. Owners v. United 
States Fish & Wildlife Serv., 852 F.3d 990, 1005 n.8 (10th Cir. 2017). 
5  
Contrary to the CDC’s assertions, this framework is not merely cobbled together from concurring opinions.  
The majority opinion in Raich claimed to be applying the Necessary and Proper Clause, and not the Commerce Clause 
alone.  Raich, 545 U.S. at 5, 22.  Moreover, the Supreme Court has since referred to Raich, Lopez, and Morrison as 
Necessary and Proper Clause cases.  See, e.g., United States v. Comstock, 560 U.S. 126, 135, 148 (2010).  And both 
the Supreme Court and the Fifth Circuit have repeatedly pointed to Justice Scalia’s concurrence in Raich for guidance 
on how the Necessary and Proper Clause framework applies.  See, e.g., Comstock, 560 U.S. at 135 (citing Justice 
Scalia’s concurrence in Raich as authoritative on the scope of the Necessary and Proper clause); United States v. 
Whaley, 577 F.3d 254, 260 (5th Cir. 2009) (expressly adopting Justice Scalia’s interpretation in Raich regarding the 
third Lopez category as a Necessary and Proper Clause test). 
6  
In a footnote, the CDC points to Markle Interests, LLC v. United States Fish & Wildlife Serv., 827 F.3d 452, 
475–76 (5th Cir. 2016), but the Necessary and Proper Clause was not raised in that case and the case has no 
precedential value because it was vacated by the Supreme Court. 

5 
some sort of economic activity.  If it does, then the court disregards all four Morrison factors and 
simply asks whether Congress could have rationally concluded that the regulated activity affects 
interstate commerce.  Dkt. #11, CDC Memo. at 21.  Given the highly deferential nature of such 
rational basis scrutiny, and the inherent interconnectedness of the economy, this test effectively 
collapses into a single question—does the regulation affect commercial activity?  This approach 
to the Commerce Clause has never been adopted by any court7 and flatly contradicts Morrison, 
which holds that the economic nature of the regulated activity is just one of four factors to be 
considered. 
The CDC’s approach is also contrary to the text of the Constitution.  The enumeration of a 
power over interstate commerce presupposes that there is some commerce that is “the exclusively 
internal commerce of a State” and therefore beyond federal control.  Morrison, 529 U.S. at 616 
n.7 (quoting Gibbons v. Ogden, 22 U.S. (9 Wheat.) 1, 195 (1824)).  Under the CDC’s single-factor 
approach, however, it is difficult to imagine any local economic activity that would be beyond 
federal control.  “In a sense any conduct in this interdependent world of ours has an ultimate 
commercial origin or consequence.”  Id. at 611.  Accordingly, we begin with the four Morrison 
factors below. 
B. 
The CDC Order Fails the Morrison Test. 
 
1. 
The CDC Order does not regulate economic activity. 
The first factor is whether the Order regulates economic activity.  The CDC claims that the 
Order regulates economic activity because it “directly regulates the economic relationship between 
                                                          
7  
The CDC argues that Raich overturned Morrison and replaced it with the single step approach it advocates.  
But both the majority and concurrence in Raich made clear that it left Morrison intact.  Indeed, Raich itself evaluated 
many of the very factors at issue in Morrison.  See Raich 545 U.S. at 25 (discussing whether the regulation was 
economic); id. at 20-21 (discussing the extensive congressional findings); id. at 28-29 (discussing the close means-
end fit).  The CDC, tellingly, does not cite a single case holding that Raich fully eliminates the need to consider the 
Morrison factors. 

6 
landlords and tenants.”  Dkt. #11, CDC Memo. at 22.  But the Order is explicit that it “has no 
effect on the contractual obligations of renters to pay rent and shall not preclude charging or 
collecting fees, penalties, or interest as a result of the failure to pay rent or other housing payment 
on a timely basis, under the terms of any applicable contract.”  85 Fed. Reg. 55296. (emphasis 
added).  In other words, the Order explicitly leaves all the economic elements of the rental contract 
in place.  Punishment under the Order is triggered solely by the non-economic actions of removing 
unlawfully present individuals from private property or invoking state legal proceedings to do so.  
85 Fed. Reg. 55293.  As explained in Plaintiffs’ Motion, neither of those things are regulations of 
economic activity.  See GDF Realty, 326 F.3d 622, 634 (removal of a species from private 
property, even for economic reasons, was not economic activity); Gustafson v. Springfield, Inc., 
2020 PA Super 239 * 48 (2020) (quoting Lopez, 514 U.S. at 567) (“the filing of a state lawsuit, in 
state court, based on state tort law, ‘is in no sense an economic activity that might, through 
repetition elsewhere, substantially affect any sort of interstate commerce’”). 
The CDC does not meaningfully address this distinction nor does it address Gustafson at 
all.  Instead, it points to Russell v. United States, 471 U.S. 858 (1985) and Jones v. United States, 
529 U.S. 848 (2000),8 for the proposition that any regulation affecting rental property is a 
“quintessential” regulation of economic activity for Commerce Clause purposes.  But, contrary to 
CDC’s assertions, neither Russell nor Jones were Commerce Clause cases.  Both were statutory 
construction cases expressly limited to whether the arson in each respective case involved a 
building “being used in an activity affecting commerce within the meaning of § 844(i)”—the 
federal arson statute.  Jones, 529 U.S. at 853 (emphasis added) (quoting Russell).  Russell found 
that burning down an apartment was the destruction of a building “being used in an activity 
                                                          
8  
The CDC also points to Groome, 234 F.3d 192, but Plaintiffs already distinguish that case in their opening 
brief and therefore do not repeat those arguments here. 

7 
affecting commerce within the meaning of § 844(i).”  Id.  And Jones held that the statute did not 
apply to the burning of a private residential dwelling.  Id. at 859.9 
Russell and Jones are not useful here.  First, both predate Morrison.  Second, both cases 
asked only whether an activity affects commerce within the meaning of § 844(i).  But Morrison is 
not concerned with whether an activity merely “affect[s] commerce within the meaning of 
§844(i).”  Morrison turns on whether a regulated activity “substantially affects interstate 
commerce” within the meaning of the Commerce Clause.  The distinction between “substantially 
affecting interstate commerce” and merely “affecting commerce” within the meaning of a statute 
is significant.  As the Supreme Court noted, “[i]n a sense any conduct in this interdependent world 
of ours has an ultimate commercial origin or consequence, but we have not yet said the commerce 
power may reach so far.”  Morrison, 529 U.S. at 611.  Finally, contrary to the CDC’s suggestions, 
neither Russell nor Jones held that any regulation of activities involving rental properties is ipso 
facto a regulation of economic activity.  To the contrary, the Court implicitly acknowledged the 
law prohibiting arson remained a regulation of “traditionally local criminal conduct” despite its 
effects on rental properties.  See Jones, 529 U.S. at 858. 
Similarly, the Order here regulates the removal of unlawfully present individuals from 
private property and the invocation of state legal proceedings.  This regulation of non-economic 
activity is not transformed into a regulation of economic activity simply because that non-
economic activity involves rental properties.  See GDF Realty, 326 F.3d at 634 (removal of species 
from property was not economic activity simply because it involved commercial property). 
                                                          
9  
The CDC also erroneously claims that United States v. Nguyen, 117 F.3d 796, 798 (5th Cir. 1997), is a 
Commerce Clause case.  But it also involved only the interpretation of § 844(i).  Indeed, the Commerce Clause was 
not even discussed.  And United States v. Corona is likewise inapposite, as that case held that federal prosecution was 
within the Commerce Clause when an arsonist burned down a “business that regularly offered transportation services 
to interstate travelers arriving at New Orleans International Airport.”  108 F.3d 565, 571 (5th Cir. 1997). 

8 
2. 
The CDC Order has No Jurisdictional Element. 
The CDC admits that the Order has no “jurisdictional element” that restricts it to interstate 
activities.  Dkt. #11, CDC Memo. at 24.  The CDC tries to circumvent this by pointing to other 
statutes and regulations that might contain jurisdictional elements.  Id.  But the possible existence 
of jurisdictional elements in other statutes or regulations is irrelevant.  A jurisdictional element is 
important because it explicitly limits the law at issue “to a discrete set of [activities] that 
additionally have an explicit connection with or effect on interstate commerce.”  Morrison, 529 
U.S. at 611-12.  That some separate statute may have a jurisdictional element that the CDC both 
ignored when adopting the Order and does not apply when enforcing it is wholly irrelevant.10 
3. 
The CDC Order does not contain sufficient findings to justify the 
regulation. 
 
As explained in Plaintiffs’ Motion, the findings evaluated under the substantial effects test 
differ depending on whether a regulation of economic activity is involved.  When the activity is 
economic, the findings should show that the regulated activity, in the aggregate, substantially 
affects interstate commerce.  By contrast, if the activity is non-economic, the findings should show 
that the order is “an essential part of a larger regulation of economic activity, in which the 
regulatory scheme could be undercut unless the intrastate activity were regulated.”  Lopez, 514 
U.S. at 561. 
The CDC admits that the Order contains no findings showing that it is “an essential part of 
a larger regulation of economic activity.”  Dkt. #11, CDC Memo. at 11, 25 n. 8.  Accordingly, if 
this Court rightly concludes that the Order regulates non-economic activity, then the CDC has 
effectively confessed judgment on this factor.  The CDC notes that the Order features claims about 
                                                          
10  
If anything, the CDC’s position indicates that it exceeded its statutory authority in adopting an order that 
plainly applies to intrastate non-economic activities. 

9 
the effect that evictions allegedly may have interstate travel.  Id.  Plaintiffs’ objections to these 
“findings,” which were not addressed in the CDC’s reply, are noted in their Motion for Preliminary 
Injunction.  Dkt. #3, Pls.’ Mot. at 18-19. 
4. 
The CDC does not posit any meaningful limiting principle on its theory 
of federal power. 
 
Next, the Court must evaluate whether the CDC’s argument requires the court “to pile 
inference upon inference in a manner that would bid fair to convert congressional authority under 
the Commerce Clause to a general police power of the sort retained by the States.”  Lopez, 514 
U.S. at 567.  As explained in Plaintiffs’ Motion, the Order fails this test because its logic jumping 
inferences would justify federal regulation of such local matters as divorce—a possibility deemed 
impermissible in Morrison.  Dkt. #3, Pls.’ Mot. at 19-21.  The CDC does not refute the logic of 
Plaintiffs’ argument.  Instead, it argues that eviction proceedings can be distinguished from divorce 
proceedings because evictions are economic activity.  Dkt. # 11, CDC Memo. at 25-26. 
First, as explained above, the Order does not regulate economic activity.  Second, even if 
the Order did regulate economic activity, the CDC’s approach merges the first and fourth Morrison 
factors in such a way that any economic activity, regardless how tenuous its connection to interstate 
commerce, is ipso facto interstate commerce.  Such a broad view of the commerce power is 
contrary to the text of the Constitution. 
C. 
The CDC Order Is Not a Proper Exercise of the Commerce Power. 
 
Even assuming that the CDC could show that the regulation at issue here was “necessary” 
under the four-part test above, this Court would still need to evaluate whether the regulation was 
“proper.”  N.F.I.B., 567 U.S. at 560; see also Raich, 545 U.S. at 39 (Scalia, concurring) (adding 
the “proper” analysis as an additional consideration after the Morrison factors).  As explained in 

10 
Plaintiffs’ Motion, the CDC Order fails this test because it is an unprecedented expansion of federal 
authority into the traditional police powers of the states.  Dkt. #3, Pls.’ Mot. at 22-24. 
The CDC raises two objections in response.  First, it claims that the Necessary and Proper 
Clause analysis in N.F.I.B. is not binding because it was not joined by any other member of the 
court. Dkt. #11, CDC Memo. at 26.  But the Fifth Circuit recently held that the holdings of the four 
dissenters plus Chief Justice Roberts on that issue constitute a holding of the Court.  See Texas v. 
United States, 945 F.3d 355, 372 (5th Cir. 2019) (“The Court also held that the provision could 
not be justified under the Constitution’s Necessary and Proper Clause.”) (emphasis added).11 
Second, the CDC claims that the Order is neither novel nor improper because it is a 
regulation of commercial activity and “the Supreme Court and the Fifth Circuit have long 
recognized the validity of federal regulation of the market for residential rental properties.”  Dkt. 
#11, CDC Memo. at 27.  But as explained above, the CDC Order makes clear that it does not 
regulate commercial activity or the market for residential properties.  85 Fed. Reg. 55296.  It 
regulates Plaintiffs’ abilities to remove unlawfully present individuals from private property and 
initiate state legal proceedings.  85 Fed. Reg. 55293.  Tellingly, the CDC is unable to cite a single 
example of prior federal regulation with such reach.  Plaintiffs have therefore established a 
reasonable likelihood of success on the merits. 
II. 
Plaintiffs Will Suffer Irreparable Harm in the Absence of Preliminary Relief. 
 
The CDC fails to even address Plaintiffs’ argument that the sovereign immunity bar from 
recovering damages from the agency is alone sufficient to render their harm irreparable.  Dkt. #3, 
Pls.’ Mot. at 26.  Further, the CDC’s argument that Plaintiffs have not shown that they would be 
unable to recover damages from their tenants also falls short.  As a matter of law, the CDC Order 
                                                          
11  
See also id. at 387 n.32, 388, 390 (all explaining that the combined holding of the four dissenters plus Chief 
Justice Roberts on the Necessary and Proper Clause is controlling). 

11 
itself demonstrates the remoteness of any possibility for future recovery from the tenants by only 
extending its protections to a tenant who satisfies these requirements: 
(3) the individual is unable to pay the full rent or make a full housing payment 
due to substantial loss of household income, loss of compensable hours of work 
or wages, a lay-off, or extraordinary out-of-pocket medical expenses; 
(4) the individual is using best efforts to make timely partial payments that are 
as close to the full payment as the individual's circumstances may permit, taking 
into account other nondiscretionary expenses; and 
(5) eviction would likely render the individual homeless—or force the 
individual to move into and live in close quarters in a new congregate or shared 
living setting—because the individual has no other available housing options. 
 
85 Fed. Reg. 55292, 55293 (Sept. 4, 2020).  People on the verge of being homeless due to economic 
hardship are not likely to be able to pay past rent that has accumulated for months, and Plaintiffs 
have demonstrated that they have tenants that fall into this category.  Decl. of Lauren Terkel at ¶¶ 
5-6, 8-10; Decl. of Carol C. Moore, ¶¶14-16; Decl. of Jerry D. Moore, ¶¶14-15; Decl. of Justin 
MacDonald, ¶¶10-11, 17-18. 
Furthermore, “destruction of a business model may constitute irreparable injury.”  Teledoc, 
Inc. v. Tex. Med. Bd., 112 F. Supp. 3d 529, 541-42 (W.D. Tex. 2015).  The inability to evict 
delinquent tenants and replace them with solvent ones could lead Plaintiffs to default on their 
mortgage obligations, and a resulting foreclosure would also constitute both a non-compliance 
event and a reportable event to the Internal Revenue Service, likely negatively affecting each 
entity’s ability to build Low-Income Housing Tax Credit properties in the future.  Decl. of Carol 
C. Moore, ¶¶ 23-24; Decl. of Jerry D. Moore, ¶¶ 22-23; Decl. of Justin MacDonald, ¶¶ 9, 13. 
The CDC points to non-binding district court orders in other challenges to the CDC Order 
that are fundamentally different than those at issue here.  First, those cases were either based on 
an unreasonable and unsupported standard for irreparable injury by requiring Plaintiffs to produce 
evidence of all of their renters’ assets while discounting the sworn declarations of those same 

12 
renters regarding their insolvency, see, e.g., Brown v. Azar, No. 1:20-CV-03702-JPB, 2020 U.S. 
Dist. LEXIS 201475, at *55-65 (N.D. Ga. Oct. 29, 2020), or ignored the sworn declarations for 
this purpose altogether, see, e.g., Tiger Lily LLC v. U.S. Dep’t of Housing & Urban Dev., ECF No. 
69, No. 20-2692, slip op. at 18 (W.D. Tenn. Nov. 6, 2020) (attached as Exhibit A to Dkt. #11, 
CDC Memo.).  There is no support for such a high burden. 
Second, Plaintiffs have raised additional arguments for irreparable injury that were not 
raised in those cases, including sovereign immunity barring recovery against the agency and 
possible foreclosure of their properties.  See, e.g., Tiger Lily LLC, No. 20-2692, slip op. at 19 (“Nor 
does any Plaintiff allege that it is in danger of losing its properties.  Absent such facts, the 
temporary interference with Plaintiffs’ real property imposed by the [CDC] Order does not 
constitute irreparable harm.”).  Finally, the plaintiffs in those cases failed to raise valid 
constitutional claims and therefore could not rely upon the case law that indicates that 
constitutional violations are per se irreparable injury. 
Contrary to the CDC’s assertions, the per se irreparable injury treatment given to 
constitutional violations is not limited to a small subset of individual rights that are unlike the 
structural federalism challenge here.  Dkt. #11, CDC Memo. at 11.  Indeed, this dichotomy 
between individual rights and structural guarantees is a false one.  See Bond v. United States, 564 
U.S. 211, 222, 225 (2011).  As the Fifth Circuit has said in upholding a preliminary injunction: 
Congress has exercised its authority under the Commerce Clause to 
regulate airlines . . . If the states were permitted to enforce their 
various laws, the airlines would be subjected to the demands and 
criteria of numerous legislatures rather than being required to 
comply only with federal laws and regulations. This would cause 
irreparable injury by depriving the airlines of a federally created 
right …. The appellants miss the thrust of the airlines’ argument by 
contending that the only threatened injury is a loss of revenue, which 
is not irreparable. We conclude that permitting states to regulate 
airline advertising in the face of the preemption language…would 

13 
violate the Supremacy Clause, causing irreparable injury…. 
 
Trans World Airlines v. Mattox, 897 F.2d 773, 784 (5th Cir. 1990).12  Plaintiffs have 
therefore established irreparable injury. 
III. 
The Threatened Injury to Plaintiffs Outweighs Whatever Damage a Preliminary 
Injunction May Cause the CDC, and an Injunction of this Unconstitutional Action 
Will Serve the Public Interest. 
 
Finally, enjoining the CDC Order will serve the public interest because Plaintiffs’ 
constitutional injuries clearly outweigh any harm that would result from enjoining enforcement 
against the small number of parties involved in this litigation.  In attempting to favorably frame 
the balance of equities inquiry, the CDC juxtaposes the government’s interest in “prevent[ing] the 
spread of an easily transmissible, potentially serious, and sometimes fatal disease” with Plaintiffs’ 
mere “individual economic interests.”  Dkt. #11, CDC Memo. at 27-28.  But that comparison both 
ignores the substantial public interest inherent in Plaintiffs’ claims and significantly overstates the 
CDC’s potential harm. 
It is axiomatic that “the Constitution is the ultimate expression of the public interest,” 
Llewelyn v. Oakland Cty. Prosecutor’s Office, 402 F. Supp. 1379, 1393 (E.D. Mich. 1975), and 
that “it is always in the public interest to prevent the violation of a party’s constitutional rights,” 
D.M. v. Minn. State High Sch. League, 917 F.3d 994, 1004 (8th Cir. 2019); Jackson Women’s 
Health Org. v. Currier, 760 F.3d 448, 458 n.9 (5th Cir. 2014).  Nor is the application of these 
principles limited to only violations of the First Amendment.  See, e.g., Daves v. Dall. Cty., 341 F. 
Supp. 3d 688 (N.D. Tex. 2018) (Equal Protection and Procedural Due Process); Cole v. Collier, 
                                                          
12  
See also City of Phila. v. Sessions, 280 F. Supp. 3d 579, 656-657 (E.D. Pa. 2017) (federal conditions violating 
spending clause constitute per se irreparable injury for preliminary injunction); Oregon v. Trump, 406 F. Supp. 3d 
940, 974 (D. Ore. 2019) (finding Tenth Amendment violation by federal spending restrictions constitutes per se 
irreparable injury for permanent injunction).  Additionally, “[t]he standard for a preliminary injunction is essentially 
the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the 
merits rather than actual success.”  Amoco Prod. Co. v. Vill. of Gambell, 480 U.S. 531, 546 n.12 (1987). 

14 
No. 4:14-CV-1698, 2017 U.S. Dist. LEXIS 112095 (S.D. Tex. 2017) (Eighth Amendment 
unconstitutional conditions of confinement). 
Further, courts not only apply this concept to violations of individual rights, but also to 
structural constitutional violations.  See, e.g., Chamber of Commerce of the United States v. 
Becerra, 438 F. Supp. 3d 1078 (E.D. Cal. 2020) (preemption under the Supremacy Clause); 
Colorado v. DeJoy, Civil Action No. 20-cv-2768-WJM, 2020 U.S. Dist. LEXIS 166962 (D. Colo. 
Sep. 12, 2020) (Colorado’s constitutional right to establish the “Times, Places and Manner of 
holding Elections”).  In fact, the Constitution’s structural constraints and the rights of individuals 
are inextricably intertwined.  See Bond, 564 U.S. at 223 (observing that it is “the constitutional 
structure of our Government that protects individual liberty”).  In particular, “[f]ederalism secures 
the freedom of the individual.”  Id. at 221; see also New York v. United States, 505 U.S. 144, 181 
(1992) (stating that “federalism secures to citizens the liberties that derive from the diffusion of 
sovereign power”). 
Accordingly, the public interest pursued by Plaintiffs in this litigation is paramount.  
Plaintiffs seek not only relief from the prospect of suffering substantial financial losses, but also 
to vindicate the Constitution: “[b]y denying any one government complete jurisdiction over all the 
concerns of public life, federalism protects the liberty of the individual from arbitrary power,” and 
plaintiffs have a “direct interest in objecting to laws that upset the constitutional balance between 
the National Government and the States” Bond, 564 U.S. at 222.  This interest in federalism has 
been recognized by the Supreme Court as “fundamental.”  See Danforth v. Minnesota, 552 U.S. 
264, 280 (2008). 
The CDC attempts to balance this fundamental constitutional interest with the threat of 
mass evictions nationwide during a pandemic.  But this greatly misstates the relevant federal 

15 
interest at stake.  In arguing against the prospect of a nationwide injunction, the CDC correctly 
points out that “any relief should be no broader than necessary to provide Plaintiffs with relief.”13  
Dkt. #11, CDC Memo. at 29-30.  However, with regard to preliminary injunctive relief, Plaintiffs 
seek only to enjoin enforcement by the government against the handful of parties to this lawsuit.  
Such limited relief will have relatively little impact on the government’s interest in stemming the 
spread of COVID-19, particularly since there is no evidence that any of the individuals facing 
eviction are currently infected with that disease.  When balanced against the fundamental 
constitutional interests discussed above, the balance of equities clearly tips toward enjoining 
enforcement against the six companies and one individual involved in this litigation. 
CONCLUSION 
The Court should issue a preliminary injunction, enjoining the CDC from enforcing the 
CDC Order. 
Respectfully Submitted, 
/s/Robert Henneke 
 
 
ROBERT HENNEKE 
Texas Bar No. 24046058 
rhenneke@texaspolicy.com 
CHANCE WELDON  
Texas Bar No. 24076767 
cweldon@texaspolicy.com 
RYAN D. WALTERS 
Texas Bar No. 24105085 
                                                          
13  
However, Plaintiffs disagree with the other limitations on injunctive relief that the CDC would have this 
Court impose.  The CDC cites Barber v. Bryant, 860 F.3d 345 (5th Cir. 2017), for the proposition that a “party must 
make [a] clear showing of standing to obtain a preliminary injunction.”  Dkt. #11, CDC Memo. at 29 n. 10.  However, 
the preliminary injunction was denied in that case because none of the parties could establish standing.  Conversely, 
several of the parties to the instant litigation independently possess standing, and thus relief should be extended to all 
parties given that “the presence of one party with standing is sufficient to satisfy Article III's case-or-controversy 
requirement.”  Texas v. United States, 809 F.3d 134, 151 (5th Cir. 2015) (quoting Rumsfeld v. Forum for Acad. & 
Institutional Rights, Inc., 547 U.S. 47, 52 n.2 (2006)).  Nor do Plaintiffs agree that the only way to establish standing 
is through receipt of a tenant declaration.  This may be required for a current “actual” injury, but Plaintiffs also seek 
to enjoin “imminent” injuries such as the inability to evict tenants that submit declarations in the future.  Only 
enjoining both actual and imminent injuries will provide “complete relief to the plaintiffs.” See Madsen v. Women’s 
Health Ctr., Inc., 512 U.S. 753, 765 (1994). 

16 
rwalters@texaspolicy.com 
TEXAS PUBLIC POLICY FOUNDATION 
901 Congress Avenue 
Austin, TX 78701 
Telephone: 
(512) 472-2700 
Facsimile: 
(512) 472-2728 
 
KIMBERLY S. HERMANN 
(admitted pro hac vice) 
Georgia Bar No. 646473 
khermann@southeasternlegal.org 
CELIA HOWARD O’LEARY 
(admitted pro hac vice) 
Georgia Bar No. 747472 
coleary@southeasternlegal.org 
SOUTHEASTERN LEGAL FOUNDATION 
560 West Crossville Rd., Ste. 104 
Roswell, GA 30075 
Telephone: 
(770) 977-2131 
 
Attorneys for Plaintiffs 

17 
CERTIFICATE OF SERVICE 
I certify that the foregoing document was electronically filed on November 16, 2020 with 
the Clerk of the Court using the CM/ECF system, which will send notification of such filing to all 
counsel of record. 
 
 
 
 
 
 
  
 
 
 
 
 
/s/Robert Henneke 
 
 
  
 
 
 
 
 
ROBERT HENNEKE

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