UNITED STATES DISTRICT COURT FOR THE DISTRICT OF COLUMBIA

ALABAMA ASSOCIATION OF REALTORS, et al.,

Plaintiffs,

v. No. 20-cv-3377 (DLF)

UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants.

MEMORANDUM OPINION

Before the Court is the Department of Health and Human Service’s (“the Department”)

Emergency Motion for Stay Pending Appeal. Dkt. 57. Pursuant to Federal Rule of Civil

Procedure 62(c), the Department seeks a stay of the Court’s May 5, 2021 order vacating the

nationwide eviction moratorium issued by the Centers for Disease Control and Prevention

(“CDC”). See Dkt. 53. For the reasons that follow, the Court will grant the motion.

I. LEGAL STANDARD

A stay pending appeal is an “extraordinary remedy,” Cuomo v. U.S. Nuclear Regul.

Comm’n,

, 978 (D.C. Cir. 1985) (per curiam), as it “is an intrusion into the ordinary

processes of administration and judicial review,” Nken v. Holder,

(2009)

(internal quotation marks omitted). Accordingly, it “is not a matter of right.”

(internal

quotation marks omitted). “It is instead an exercise of judicial discretion” that “is dependent

upon the circumstances of the particular case.”

(internal quotation marks omitted).

The moving party bears the burden of showing that this extraordinary remedy is

warranted upon consideration of four factors: “(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably

injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties

interested in the proceeding; and (4) where the public interest lies.”

at 433–34 (internal

quotation marks omitted). The first two factors “are the most critical,”

, and when the

government is a party, its “harm and the public interest are one and the same, because the

government’s interest is the public interest,” Pursuing America’s Greatness v. FEC,

(D.C. Cir. 2016) (emphasis in original); see Nken,

.

“The manner in which courts should weigh the four factors ‘remains an open question’ in

this Circuit.” Nora v. Wolf, No. 20-cv-0993,

, at *6 (D.D.C. Jun. 25, 2020)

(quoting Aamer v. Obama,

(D.C. Cir. 2014)). At least in the context of

weighing whether to grant a preliminary injunction, the D.C. Circuit has “suggested, without

deciding,” that Winter v. Natural Resources Defense Council,

(2008), could be read

to require a plaintiff “to independently demonstrate both a likelihood of success on the merits

and irreparable harm,” Standing Rock Sioux Tribe v. U.S. Army Corps of Eng’rs,

, 26 (D.D.C. 2016) (quoting Sherley v. Sebelius,

, 392–93 (D.C. Cir. 2011)). But

in the absence of clear guidance, courts in this Circuit have continued to analyze the factors “on a

sliding scale whereby a strong showing on one factor could make up for a weaker showing on

another.” NAACP v. Trump,

(D.D.C. 2018) (internal quotation marks

omitted). Under this framework, a movant may make up for a lower likelihood of success on the

merits “with a strong showing as to the other three factors, provided that the issue on appeal

presents a ‘serious legal question’ on the merits.” Cigar Ass’n of Am. v. FDA,

(D.D.C. 2018) (quoting Wash. Metro. Area Transit Comm’n v. Holiday Tours, Inc.,

(D.C. Cir. 1977)). Here, the Court will adopt the approach taken by other judges

2 and “apply th[is] sliding scale approach” to determine whether the Department is entitled to a

stay pending resolution of its appeal. See NAACP,

(internal quotation

marks omitted). To prevail under this standard, the Department “need only raise a serious legal

question on the merits” if the “other factors strongly favor issuing a stay.”

(internal quotation

marks omitted).

II. ANALYSIS

A. Likelihood of Success

As to the first factor—the likelihood of success on the merits—“[i]t is not enough that the

chance of success on the merits [is] better than negligible.” Nken,

(internal

quotation marks omitted). Rather, it must be “substantial.” Holiday Tours,

.

Here, the Department has not shown a substantial likelihood of success on the merits.

The Public Health Service Act provides, in relevant part:

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.

(a).

The Department continues to argue that this statutory provision vests the Secretary with

“broad authority to make and enforce” any regulations that “in his judgment are necessary to

prevent the spread of disease,” Defs.’ Mot. for Summ. J. at 11 (internal quotation marks

omitted), Dkt. 26, and that the second sentence of § 264(a) imposes no limit on this “broad grant

of authority,” Defs.’ Emergency Mot. for Stay Pending Appeal (“Defs.’ Mot. to Stay”) at 7–8.

3 The Court disagrees. Like other courts before it, this Court concluded in its May 5, 2021

Memorandum Opinion that the broad grant of rulemaking authority in the first sentence of

§ 264(a) is tethered to—and narrowed by—the second sentence, which enumerates various

measures the Secretary “may provide for” to carry out and enforce regulations issued under

§ 264(a): “inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction

of animals or articles found to be so infected or contaminated as to be sources of dangerous

infection to human beings.”

(a); see Mem. Op. of May 5, 2021 at 11, Dkt. 54.

The Department is correct that this list of measures is not exhaustive, as the Secretary may

provide for “other measures, as in his judgment may be necessary.”

(a). But

these “other measures” are “controlled and defined by reference to the enumerated categories

before it.” See Tiger Lily, LLC v. U.S. Dep’t of Hous. & Urb. Dev.,

, 522–23 (6th

Cir. 2021) (internal quotation marks and alteration omitted).

With that in mind, the statute could be read as requiring that the enumerated measures be

directed toward “animals or articles,”

(a), that are “found to be so infected or

contaminated as to be sources of dangerous infection to human beings,” id.; see Skyworks, Ltd. v.

Ctrs. for Disease Control & Prevention, No. 5:20-cv-2407,

, at *10 (N.D. Ohio

Mar. 10, 2021); Mem. Op. of May 5, 2021 at 11–12. Alternatively, the statute could be

interpreted to tie the limitations surrounding “animals or articles” solely to “destruction.”

(a). But even then, the enumerated measures—“inspection, fumigation,

disinfection, sanitation, [and] pest extermination,” id.—are “by their common meanings and

understandings. . . tied to specific, identifiable properties,” Skyworks,

, at *9.

And under either reading, an eviction moratorium is “radically unlike” the measures enumerated

in the statute. See Tiger Lily,

(interpreting

(a)). As this Court

4 and others have noted, to read the enumerated measures in § 264(a) as imposing no limits on the

Secretary’s authority to “make and enforce regulations” would raise serious constitutional

concerns. See Mem. Op. of May 5, 2021 at 14 (collecting cases).

The Department also contends it has a “substantial likelihood of success on appeal

because Congress ratified the CDC Order in the 2021 Consolidated Appropriations Act.” Defs.’

Mot. to Stay at 2. In § 502 of that Act, Congress provided:

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’’ (

(September 4, 2020) is extended through January 31, 2021, notwithstanding the effective dates specified in such Order.

,

, 2078–79 (2020).

It is true that Congress may “give the force of law to official action unauthorized when

taken.” Swayne & Hoyt v. United States,

, 301–02 (1937). But to ratify such

action, Congress must make its intention clear. See United States v. Heinszen & Co.,

(1907); see also Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt.,

, 19

n.7 (D.C. Cir. 2006) (noting ratification may occur when there is a “clear statement of

congressional approval”) (internal citation omitted). While no “magic words are required,”

Defs.’ Reply in Supp. of Partial Mot. to Dismiss at 5, Dkt. 38, Congress must use “clear and

unequivocal language,” EEOC v. CBS, Inc.,

(2d Cir. 1984), to ratify “official

action unauthorized when taken,” Swayne & Hoyt,

.

Congress did not do so here. As other cases illustrate, the language of § 502 falls short of

statutory provisions courts have found to ratify agency action. See, e.g., Thomas v. Network

Sols., Inc.,

(D.C. Cir. 1999) (“is hereby legalized and ratified and confirmed

as fully to all intents and purposes as if the same had, by prior act of Congress, been specifically

5 authorized and directed”); Patchak v. Jewell,

(D.D.C. 2015) (“are

ratified and confirmed”), aff’d,

(D.C. Cir. 2016), aff’d sub nom. Patchak v. Zinke,

(2018); Am. Fed’n of Gov’t Emps. v. D.C. Fin. Resp. & Mgmt. Assistance Auth.,

, 77–78 (D.D.C. 2001) (“is hereby ratified and approved”); James v. Hodel,

(D.D.C. 1988) (“Congress hereby ratifies and confirms”), aff’d sub nom.

James v. Lujan,

(D.C. Cir. 1990); Heinszen,

(“hereby legalized

and ratified” and “is hereby legalized and ratified and confirmed as fully to all intents and

purposes as if the same had, by prior act of Congress, been specifically authorized and

directed”); cf. Ex parte Endo,

, 303 n.24 (1944) (ratification may occur through an

appropriation only if the appropriation “plainly show[s] a purpose to bestow the precise authority

which is claimed.”); Schism v. United States,

(Fed. Cir. 2002)

(“[R]atification ordinarily cannot occur in the appropriations context unless the appropriations

bill itself expressly allocates funds for a specific agency or activity.”) (emphasis added).

By contrast, when Congress enacted § 502 of the Consolidated Appropriations Act, it

simply acknowledged that the CDC issued its order pursuant to the Public Health Service Act.

Mem. Op. of May 5, 2021 at 18. It did not expressly approve of the agency’s interpretation of

(a), nor did it provide the agency with any additional statutory authority. See

“All § 502 did was congressionally extend the agency’s action until January 31, 2021.” Tiger

Lily,

. Because that date has now passed—and Congress has therefore withdrawn

its support—the CDC Order must rely exclusively on the text of the Public Health Service Act.

See

The Department also points to the “nationwide reach of this Court’s judgment,” Defs.’

Reply in Supp. of Mot. to Stay at 7, Dkt. 59, and insists that “traditional principles of equity and

6 Article III jurisdiction require limiting relief to the Plaintiffs,” Defs.’ Mot. to Stay at 8–9

(emphasis added). This argument, however, is “at odds with settled precedent.” See O.A. v.

Trump,

, 153 (D.D.C. 2019). The D.C. Circuit has instructed that when a

regulation is declared unlawful, “the ordinary result is that the rule[] [is] vacated—not that [its]

application to the individual petitioner is proscribed.” Nat’l Mining Ass’n v. U.S. Army Corps of

Eng’rs,

(D.C. Cir. 1998) (internal quotation marks omitted). In this Circuit,

“the law is clear that when a court vacates an agency rule, the vacatur applies to all regulated

parties, not only those formally before the court.” D.A.M. v. Barr,

, 415

(D.D.C. 2020); O.A., 404 F. Supp. 3d at 152 (collecting cases).

For these reasons and for those stated in the Court’s May 5, 2021 Memorandum Opinion,

the Department has not shown a substantial likelihood of success on the merits. Arguably, the

Department’s failure to meet this standard is a fatal flaw for its motion. See M.M.V. v. Barr,

, 4 (D.D.C. 2020) (citing Citizens for Resp. & Ethics in Wash. v. Fed. Election

Comm’n,

(D.C. Cir. 2018) (per curiam)). Indeed, in another case

challenging the CDC Order, the Sixth Circuit denied a similar emergency motion for stay on this

ground alone. See Tiger Lily,

(“Given that the government is unlikely to succeed

on the merits, we need not consider the remaining stay factors.”).

But, as noted, in this Circuit a movant’s failure to demonstrate a likelihood of success on

the merits does not preclude a stay if they have raised a “serious legal question on the merits.”

See Cigar Ass’n of Am.,

(internal quotation marks omitted); Holiday

Tours,

. Although a majority of courts that have addressed the lawfulness of the

CDC Order reached the same conclusion as this Court, see Mem. Op. of May 5, 2021 at 5

(collecting cases), two have disagreed, at least at the preliminary injunction stage, see Brown v.

7 Azar, No. 20-cv-03702,

, at *9–11 (N.D. Ga. Oct. 29, 2020), appeal filed, No.

20-14210 (11th Cir. 2020); Chambless Enters., LLC v. Redfield, No. 20-cv-01455,

, at *5–9 (W.D. La. Dec. 22, 2020), appeal filed, No. 21-30037 (5th Cir. 2021). Given

the diverging rulings of these courts and the significance of the CDC Order, the Department has

met this less demanding standard. See Cigar Ass’n of Am.,

(internal

quotation marks omitted). The Department therefore can obtain a stay if it makes a sufficiently

strong showing as to the remaining stay factors. See NAACP,

.

B. Remaining Factors

As to the second factor—whether the movant will be irreparably injured absent a stay—

the movant must make a strong showing “that the injury claimed is both certain and great.”

Cuomo, 772 F.2d at 976 (internal quotation marks omitted). “Probability of success is inversely

proportional to the degree of irreparable injury evidenced.” Id. at 974. “A stay may be granted

with either a high probability of success and some injury, or vice versa.” Id.

The Department has made a showing of irreparable injury here. As the federal agency

tasked with disease control, the Department, and the CDC in particular, have a strong interest in

controlling the spread of COVID-19 and protecting public health. The CDC’s most recent order

is supported by observational data analyses that estimate that as many as 433,000 cases of

COVID-19 and thousands of deaths could be attributed to the lifting of state-based eviction

moratoria. See

, 16,734 (Mar. 31, 2021). The CDC Order also cites a

mathematical model that “estimate[s] that anywhere from 1,000 to 100,000 excess cases per

million population could be attributable to evictions depending on the eviction and infection

rates.”

To be sure, these figures are estimates, but they nonetheless demonstrate that lifting

the national moratorium will “exacerbate the significant public health risks identified by [the]

8 CDC.” Defs.’ Mot. to Stay at 3. Even though “vaccinations are on the rise,” Pls.’ Opp’n at 2, at

least as of last week, the nation was averaging “more than 45,000 new infections per day,” Defs.’

Mot. to Stay at 5–6, and the recent “emergence of variants” presents yet another potential cause

for concern, see 86 Fed. Reg. at 16,733. Thus, the risks to public health continue.

As to the third factor—the risk of injury to the plaintiffs—the economic impact of the

CDC Order is indeed substantial. See Mem. Op. of May 5, 2021 at 15 n.4. The plaintiffs assert

that landlords will continue to lose between $13.8 and $19 billion each month in unpaid rent as a

result of the CDC Order, and that over the course of the year their cumulative losses will be close

to $200 billion. Pl’s Opp’n at 7 (citing Decl. of Scholastica Cororaton ¶¶ 15, 17, Dkt. 6-4).

While these financial losses are severe, some are recoverable. See Brown,

, at *20 (explaining that the fact “tenants may not currently be able to afford their rent”

does not mean that the plaintiffs “will likely never be able to collect a judgment”). The CDC

Order itself does not excuse tenants from making rental payments. See 86 Fed. Reg. at 16,736.

It simply delays them. See id. Congress also has taken steps to provide financial relief to tenants

and landlords through the Consolidated Appropriations Act, § 501, 134 Stat. at 2070–78, and the

American Rescue Plan Act,

(a)(1),

, 54 (2021). These

efforts help mitigate the landlords’ financial losses.

A stay to allow the D.C. Circuit time to review this Court’s ruling, presumably on an

expedited basis, will no doubt result in continued financial losses to landlords. But the

magnitude of these additional financial losses is outweighed by the Department’s weighty

interest in protecting the public. See League of Indep. Fitness Facilities & Trainers, Inc. v.

Whitmer,

, 129–30 (6th Cir. 2020).

9 Finally, the fourth factor—the public interest—weighs in favor of a stay for the public

health reasons discussed. The fact that this “litigation presents questions of ‘extraordinary public

moment’ [is] a consideration which [also] militates in favor of a stay.” Al-Adahi v. Obama,

(D.D.C. 2009) (quoting Landis v. N. Am. Co.,

(1936)).

***

Weighing each of the traditional stay factors, the Court will exercise its discretion to

grant the Department’s Emergency Motion for Stay Pending Appeal. Although the Court

believes, as one Circuit has already held, see Tiger Lily,

, there is not a

substantial likelihood the Department will succeed on appeal, the CDC’s nationwide eviction

moratorium raises serious legal questions. The Department also has made a sufficiently strong

showing as to the remaining factors to justify a stay of this Court’s decision.

The Court remains mindful that landlords across the country have incurred substantial

economic hardships as a result of the CDC’s nationwide moratorium on evictions. The longer

the moratorium remains in effect, the more these hardships will be exacerbated. Even so, given

the public health consequences cited by the CDC, a stay is warranted.

CONCLUSION For the foregoing reasons, the Department’s Emergency Motion for Stay Pending Appeal

is granted. A separate order consistent with this decision accompanies this memorandum

opinion.

________________________ DABNEY L. FRIEDRICH May 14, 2021 United States District Judge

10