Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 1 of 20
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`UNITED STATES DISTRICT COURT
`FOR THE DISTRICT OF COLUMBIA
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`
`
`
`v.
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`
`ALABAMA ASSOCIATION OF
`REALTORS, et al.,
`
`
`
`
`
`UNITED STATES DEPARTMENT OF
`HEALTH AND HUMAN SERVICES, et al.,
`
`
`
`
`Plaintiffs,
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`Defendants.
`
`
`
`No. 20-cv-3377 (DLF)
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`
`MEMORANDUM OPINION
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`As part of the Coronavirus Aid, Relief, and Economic Security Act (CARES Act), Pub.
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`L. No. 116-136, 134 Stat. 281 (2020), Congress enacted a 120-day eviction moratorium that
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`applied to rental properties receiving federal assistance, id. § 4024(b). After that moratorium
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`expired, the U.S. Department of Health and Human Services (HHS), through the Centers for
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`Disease Control and Prevention (CDC), issued an order implementing a broader eviction
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`moratorium that applied to all rental properties nationwide, 85 Fed. Reg. 55,292 (Sept. 4, 2020),
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`which prompted this suit. Since then, Congress has granted a 30-day extension of the CDC
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`Order, and the CDC has extended the order twice itself. The current order is set to expire on
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`June 30, 2021.
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`In this action, the plaintiffs raise a number of statutory and constitutional challenges to
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`the CDC Order. Before the Court is the plaintiffs’ Motion for Expedited Summary Judgment,
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`Dkt. 6, as well as the Department’s Motion for Summary Judgment, Dkt. 26, and Partial Motion
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`to Dismiss, Dkt. 32. For the reasons that follow, the Court will grant the plaintiffs’ motion and
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`deny the Department’s motions.
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 2 of 20
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`I.
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`BACKGROUND
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`On March 13, 2020, then-President Trump declared COVID-19 a national emergency.
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`See generally Declaring a National Emergency Concerning the Novel Coronavirus Disease
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`(COVID-19) Outbreak, Proclamation 9994, 85 Fed. Reg. 15,337 (Mar. 13, 2020). Two weeks
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`later, he signed the CARES Act into law. See Pub. L. No. 116-136, 134 Stat. 281 (2020). The
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`CARES Act included a 120-day eviction moratorium with respect to rental properties that
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`participated in federal assistance programs or were subject to federally-backed loans. See id. §
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`4024. In addition, some—but not all—states adopted their own temporary eviction moratoria.
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`Administrative Record (“AR”) at 966–72, 986–1024, Dkt. 40. The CARES Act’s federal
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`eviction moratorium expired in July 2020.
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`On August 8, 2020, then-President Trump issued an executive order directing the
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`Secretary of HHS (“the Secretary”) and the Director of the CDC to “consider whether any
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`measures temporarily halting residential evictions of any tenants for failure to pay rent are
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`reasonably necessary to prevent the further spread of COVID-19 from one State or possession
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`into any other State or possession.” Fighting the Spread of COVID-19 by Providing Assistance
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`to Renters and Homeowners, Executive Order 13,945, 85 Fed. Reg. 49,935, 49,936 (Aug. 8,
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`2020).
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`Weeks later, on September 4, 2020, the CDC issued the “Temporary Halt in Residential
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`Evictions To Prevent the Further Spread of COVID-19” (“CDC Order”), pursuant to § 361 of the
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`Public Health Service Act, 42 U.S.C. § 264(a), and 42 C.F.R. § 70.2. 85 Fed. Reg. 55,292 (Sept.
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`4, 2020). In this order, the CDC determined that a temporary halt on residential evictions was “a
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`reasonably necessary measure . . . to prevent the further spread of COVID-19.” 85 Fed. Reg. at
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`55,296. As the CDC explained, the eviction moratorium facilitates self-isolation for individuals
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`2
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 3 of 20
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`infected with COVID-19 or who are at a higher-risk of severe illness from COVID-19 given
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`their underlying medical conditions. Id. at 55,294. It also enhances state and local officials’
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`ability to implement stay-at-home orders and other social distancing measures, reduces the need
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`for congregate housing, and helps prevent homelessness. Id. at 55,294.
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`The CDC Order declared that “a landlord, owner of a residential property, or other person
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`with a legal right to pursue eviction or possessory action shall not evict any covered person.” Id.
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`at 55,296. To qualify for protection under the moratorium, a tenant must submit a declaration to
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`their landlord affirming that they: (1) have “used best efforts to obtain all available government
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`assistance for rent or housing”; (2) expect to earn less than $99,000 in annual income in 2020,
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`were not required to report any income in 2019 to the Internal Revenue Service, or received a
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`stimulus check under the CARES Act; (3) are “unable to pay the full rent or make a full housing
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`payment due to substantial loss of household income, loss of compensable hours of work or
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`wages, a lay-off, or extraordinary out-of-pocket medical expenses”; (4) are “using best efforts to
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`make timely partial payments”; (5) would likely become homeless or be forced to move into a
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`shared residence if evicted; (6) understand that rent obligations still apply; and (7) understand
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`that the moratorium is scheduled to end on December 31, 2020. Id. at 55,297.
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`Unlike the CARES Act’s moratorium, which only applied to certain federally backed
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`rental properties, the CDC Order applied to all residential properties nationwide. Id. at 55,293.
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`In addition, the CDC Order includes criminal penalties. Individuals who violate its provisions
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`are subject to a fine of up to $250,000, one year in jail, or both, and organizations are subject to a
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`fine of up to $500,000. Id. at 55,296.
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`The CDC Order was originally slated to expire on December 31, 2020. Id. at 55,297. As
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`part of the Consolidated Appropriations Act, however, Congress extended the CDC Order to
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`3
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 4 of 20
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`apply through January 31, 2021, Pub. L. No. 116-260, § 502, 134 Stat. 1182 (2020). On January
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`29, 2021, the CDC extended the order through March 31, 2021. Temporary Halt in Residential
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`Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021). In this
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`extension, the CDC updated its findings to account for new evidence of how conditions had
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`worsened since the original order was issued, as well as “[p]reliminary modeling projections and
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`observational data” from states that lifted eviction moratoria “indicat[ing] that evictions
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`substantially contribute to COVID-19 transmission.” Id. at 8022. The CDC later extended the
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`order through June 30, 2021. Temporary Halt in Residential Evictions to Prevent the Further
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`Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar. 31, 2021).
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`A. Procedural History
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`The plaintiffs—Danny Fordham, Robert Gilstrap, the corporate entities they use to
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`manage rental properties (Fordham & Associates, LLC, H.E. Cauthen Land and Development,
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`LLC, and Title One Management, LLC), and two trade associations (the Alabama and Georgia
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`Associations of Realtors)—filed this action on November 20, 2020. Compl., Dkt. 1. They
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`challenge the lawfulness of the eviction moratorium on a number of statutory and constitutional
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`grounds. The plaintiffs allege that the eviction moratorium exceeds the CDC’s statutory
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`authority, id. ¶¶ 81–84 (Count III), violates the notice-and-comment requirement, id. ¶¶ 63–70
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`(Count I), and is arbitrary and capricious, id. ¶¶ 85–91 (Count IV), all in violation of the
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`Administrative Procedure Act (APA). The plaintiffs further allege that the eviction moratorium
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`fails to comply with the Regulatory Flexibility Act. Id. ¶¶ 71–78 (Count II). To the extent that
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`the Public Health Service Act authorizes the eviction moratorium, the plaintiffs allege that the
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`Act is an unconstitutional delegation of legislative power under Article I. Id. ¶¶ 92–95 (Count
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`V). Finally, the plaintiffs allege that the eviction moratorium constitutes an unlawful taking of
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`4
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 5 of 20
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`property in violation of the Takings Clause, id. ¶¶ 96–103 (Count VI), violates the Due Process
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`Clause, id. ¶¶ 96–110 (Count VII), and deprives the plaintiffs of their right of access to courts,
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`id. ¶¶ 111–15 (Count VIII). The plaintiffs seek declaratory and injunctive relief, attorneys’ fees
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`and costs, and any other relief the Court deems just and proper. Id. ¶¶ 116–20.
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`Before the Court is the plaintiffs’ expedited motion for summary judgment, Dkt. 6, and
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`the Department’s cross-motion for summary judgment. Also before the Court is the
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`Department’s partial motion to dismiss, Dkt. 32, in which the Department argues that Congress
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`ratified the CDC Order when it extended the eviction moratorium in the Consolidated
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`Appropriations Act of 2021. All three motions are now ripe for review.
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`B. Relevant Decisions
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`This Court is not the first to address a challenge to the national eviction moratorium set
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`forth in the CDC Order. In the last several months, at least six courts have considered various
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`statutory and constitutional challenges to the CDC Order. Most recently, the Sixth Circuit
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`denied a motion to stay a district court decision that held that the order exceeded the CDC’s
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`authority under 42 U.S.C. § 264(a), see Tiger Lily, LLC v. United States Dep’t of Hous. & Urb.
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`Dev., No. 2:20-cv-2692, 2021 WL 1171887, at *4 (W.D. Tenn. Mar. 15, 2021) (concluding that
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`the CDC Order exceeded the statutory authority of the Public Health Service Act), appeal filed
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`No. 21-5256 (6th Cir. 2021); Tiger Lily, LLC v. United States Dep’t of Hous. & Urb. Dev., 992
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`F.3d 518, 520 (6th Cir. 2021) (denying emergency motion for stay pending appeal); see also
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`Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention, No. 5:20-cv-2407, 2021 WL 911720,
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`at *12 (N.D. Ohio Mar. 10, 2021) (holding that the CDC exceeded its authority under 42 U.S.C.
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`§ 264(a)). Two other district courts, however, declined to enjoin the CDC Order at the
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`preliminary injunction stage, see Brown v. Azar, No. 1:20-cv-03702, 2020 WL 6364310, at *9–
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`5
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 6 of 20
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`11 (N.D. Ga. Oct. 29, 2020), appeal filed, No. 20-14210 (11th Cir. 2020); Chambless
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`Enterprises, LLC v. Redfield, No. 20-cv-01455, 2020 WL 7588849, at *5–9 (W.D. La. Dec. 22,
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`2020), appeal filed, No. 21-30037 (5th Cir. 2021). Separately, another district court declared
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`that the federal government lacks the constitutional authority altogether to issue a nationwide
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`moratorium on evictions. See Terkel v. Ctrs. for Disease Control & Prevention, No. 6:20-cv-
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`564, 2021 WL 742877, at *1–2, 10–11 (E.D. Tex. Feb. 25, 2021), appeal filed, No. 21-40137
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`(5th Cir. 2021).
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`II.
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`LEGAL STANDARD
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`Summary judgment is proper if the moving party “shows that there is no genuine dispute
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`as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. Civ. P.
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`56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 247–48 (1986). A fact is
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`“material” if it has the potential to change the substantive outcome of the litigation. See id. at
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`248; Holcomb v. Powell, 433 F.3d 889, 895 (D.C. Cir. 2006). And a dispute is “genuine” if a
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`reasonable jury could determine that the evidence warrants a verdict for the nonmoving party.
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`See Anderson, 477 U.S. at 248; Holcomb, 433 F.3d at 895.
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`In a case reviewing agency action, summary judgment “serves as the mechanism for
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`deciding, as a matter of law, whether the agency action is supported by the administrative record
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`and otherwise consistent with the APA standard of review.” Sierra Club v. Mainella, 459 F.
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`Supp. 2d 76, 90 (D.D.C. 2006). “[T]he entire case . . . is a question of law,” and the district court
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`“sits as an appellate tribunal.” Am. Bioscience, Inc. v. Thompson, 269 F.3d 1077, 1083 (D.C.
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`Cir. 2001) (internal quotation marks and footnote omitted).
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`6
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`III. ANALYSIS
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`A. Standing
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`Article III of the Constitution limits the “judicial Power” of federal courts to “Cases” and
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`“Controversies.” U.S. Const. art. III, § 2, cl. 1. “[T]here is no justiciable case or controversy
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`unless the plaintiff has standing.” West v. Lynch, 845 F.3d 1228, 1230 (D.C. Cir. 2017). To
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`establish standing, a plaintiff must demonstrate a concrete injury-in-fact that is fairly traceable to
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`the defendant’s action and redressable by a favorable judicial decision. Summers v. Earth Island
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`Inst., 555 U.S. 488, 493 (2009).
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`Since the CDC Order went into effect, the three real estate management company
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`plaintiffs have each had tenants who have stopped paying rent, invoked the protections of the
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`eviction moratorium, and would be subject to eviction but for the CDC Order. See Decl. of
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`Danny Fordham ¶¶ 2–5, 9–17, Dkt. 6-2; Decl. of Robert Gilstrap ¶¶ 2, 4–12, Dkt. 6-3. At a
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`minimum, these three plaintiffs have established a concrete injury that is traceable to the CDC
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`Order and is redressable by a decision vacating the CDC Order. See Summers, 555 U.S. at 493.
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`“[I]t is immaterial that other plaintiffs might be unable to demonstrate their own standing,” J.D.
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`v. Azar, 925 F.3d 1291, 1323 (D.C. Cir. 2019), because “Article III’s case-or-controversy
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`requirement is satisfied if one plaintiff can establish injury and standing,” id.
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`B. The Agency’s Statutory Authority
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`Section 361 of the Public Health Service Act empowers the Secretary to “make and
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`enforce such regulations as in his judgment are necessary to prevent the introduction,
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`transmission, or spread of communicable diseases” either internationally or between states.1 42
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`1 “Although the statute states that this authority belongs to the Surgeon General, subsequent
`reorganizations not relevant here have resulted in the transfer of this responsibility to the
`Secretary.” Skyworks, 2021 WL 911720, at *5.
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`U.S.C. § 264(a). “For purposes of carrying out and enforcing such regulations,” the Secretary is
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`authorized to “provide for such inspection, fumigation, disinfection, sanitation, pest
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`extermination, destruction of animals or articles found to be so infected or contaminated as to be
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`sources of dangerous infection to human beings, and other measures, as in his judgment may be
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`necessary.” Id. The Secretary is also authorized to, within certain limits, make and enforce
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`regulations to apprehend, examine, and, if necessary, detain individuals “believed to be infected
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`with a communicable disease” or who are “coming into a State or possession” from a foreign
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`country. Id. § 264(b)–(d).
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`By regulation, the Secretary delegated this authority to the Director of the CDC. 42
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`C.F.R. § 70.2. Pursuant to this regulation, when the Director of the CDC determines that the
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`measures taken by health authorities of any state or local jurisdiction are insufficient to prevent
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`the spread of communicable disease, “he/she may take such measures to prevent such spread of
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`the diseases as he/she deems reasonably necessary, including inspection, fumigation,
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`disinfection, sanitation, pest extermination, and destruction of animals or articles believed to be
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`sources of infection.” Id.
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`In determining whether the eviction moratorium in the CDC Order exceeds the
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`Department’s statutory authority, the Department urges the Court to apply the familiar two-step
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`Chevron framework. See Defs.’ Mot. for Summ. J. (“Def.’s Cross-Mot.”) at 8 (citing Chevron,
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`U.S.A., Inc. v. Nat’l Res. Def. Council, Inc., 467 U.S. 837, 842 (1984)). While it is true that “the
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`CDC did not follow APA notice-and-comment rulemaking procedures before issuing the
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`Eviction Moratorium,” Pl.’s Mem. in Supp. of Expedited Mot. for Summ. J. (“Pl.’s Mem.”) at
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`21, Dkt. 6-1, “Chevron deference is not necessarily limited to regulations that are the product of
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`notice-and-comment rulemaking,” Pub. Citizen, Inc. v. U.S. Dep’t of Health & Hum. Servs., 332
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 9 of 20
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`F.3d 654, 660 (D.C. Cir. 2003). The Chevron framework applies where “Congress [has]
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`delegated authority to the agency generally to make rules carrying the force of law” and “the
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`agency interpretation claiming deference was promulgated in the exercise of that authority.”
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`United States v. Mead, 533 U.S. 218, 226–27 (2001); Fox v. Clinton, 684 F.3d 67, 78 (D.C. Cir.
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`2012). Here, the CDC Order was issued pursuant to a broad grant of rulemaking authority, see
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`42 U.S.C. § 264(a) (authorizing the Secretary to “make and enforce” regulations “to prevent the
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`introduction, transmission, or spread of communicable diseases.”); 42 C.F.R. § 70.2 (delegating
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`this authority to the Director of the CDC), and was “clearly intended to have general
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`applicability.” Kaufman v. Nielsen, 896 F.3d 475, 484 (D.C. Cir. 2018). It was also issued “with
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`a lawmaking pretense in mind,” Mead, 533 U.S. at 233, published in the Federal Register, see
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`Citizens Exposing Truth about Casinos v. Kempthorne, 492 F.3d 460, 467 (D.C. Cir. 2007), and
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`backed with the threat of criminal penalties, 85 Fed. Reg. 55,296. Because the CDC Order was
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`clearly intended to have the force of law, the two-step Chevron framework applies.2
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`Applying Chevron and using the traditional tools of statutory interpretation, a court must
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`first consider at Step One “whether Congress has directly spoken to the precise question at issue.”
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`Chevron, 467 U.S. at 842. “If Congress has directly spoken to [an] issue, that is the end of the
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`2 The fact that section 361 of the Public Health Service Act is administered by both the CDC and
`the FDA, see Control of Communicable Diseases; Apprehension and Detention of Persons With
`Specific Diseases; Transfer of Regulations, 65 Fed. Reg. 49,906, 49,907 (Aug. 16, 2000), does
`not preclude application of the Chevron framework. While courts “generally do not apply
`Chevron deference when the statute in question is administered by multiple agencies,” Kaufman,
`896 F.3d at 483; see also, e.g., DeNaples v. Office of Comptroller of Currency, 706 F.3d 481,
`487 (D.C. Cir. 2013), the FDA and the CDC are both sub-agencies within HHS. Accordingly,
`“there is nothing special to undermine Chevron’s premise that the grant of authority reflected a
`congressional expectation that courts would defer” to reasonable agency interpretations of the
`statute, and there is little risk of “conflicting mandates to regulated entities.” Loan Syndications
`& Trading Ass’n v. Sec. & Exch. Comm’n, 882 F.3d 220, 222 (D.C. Cir. 2018) (summarizing
`instances where “Chevron is inapplicable due to the multiplicity of agencies”).
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`matter.” Confederated Tribes of Grand Ronde Cmty. of Or. v. Jewell, 830 F.3d 552, 558 (D.C.
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`Cir. 2016) (citing Chevron, 467 U.S. at 837). “[T]he court, as well [as] the agency, must give
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`effect to the unambiguously expressed intent of Congress.” Lubow v. U.S. Dep’t of State, 783
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`F.3d 877, 884 (D.C. Cir. 2015) (quoting Chevron, 467 U.S. at 842–43). Only if the text is silent
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`or ambiguous does a court proceed to Step Two. There, a court must “determine if the agency’s
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`interpretation is permissible, and if so, defer to it.” Confederated Tribes of Grand Ronde Cmty.,
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`830 F.3d at 558. To determine “whether [an] agency’s interpretation is permissible or instead is
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`foreclosed by the statute,” courts use “all the tools of statutory interpretation,” Loving v. IRS, 742
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`F.3d 1013, 1016 (D.C. Cir. 2014), and “interpret the words [of a statute] consistent with their
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`ordinary meaning at the time Congress enacted the statute,” Wisconsin Cent. Ltd. v. United
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`States, 138 S. Ct. 2067, 2070 (2018) (internal quotation marks and alteration omitted); see also
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`Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 78 (2012)
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`(“Words must be given the meaning they had when the text was adopted.”).
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`The first question, then, is whether the relevant statutory language addresses the “precise
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`question at issue.” Chevron, 467 U.S. at 842. As noted, the Public Health Service Act provides,
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`in relevant part:
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`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.
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`42 U.S.C. § 264(a). Other subsections of the Act authorize, in certain circumstances, the
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`quarantine of individuals in order to prevent the interstate or international spread of disease. See
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`id. § 264(b)–(d). Though the Public Health Service Act grants the Secretary broad authority to
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 11 of 20
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`make and enforce regulations necessary to prevent the spread of disease, his authority is not
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`limitless.
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`Section 264(a) provides the Secretary with general rulemaking authority to “make and
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`enforce such regulations,” id. § 264(a) (emphasis added), that “in his judgment are necessary” to
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`combat the international or interstate spread of communicable disease, id. But this broad grant
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`of rulemaking authority in the first sentence of § 264(a) is tethered to—and narrowed by—the
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`second sentence. It states: “For purposes of carrying out and enforcing such regulations,” id.
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`(emphasis added), the Secretary “may provide for such inspection, fumigation, disinfection,
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`sanitation, pest extermination [and] destruction of animals or articles found to be so infected or
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`contaminated as to be sources of dangerous infection to human beings.” Id.
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`
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`These enumerated measures are not exhaustive. The Secretary may provide for “other
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`measures, as in his judgment may be necessary.” Id. But any such “other measures” are
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`“controlled and defined by reference to the enumerated categories before it.” See Tiger Lily, 992
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`F.3d at 522–23 (internal quotation marks and alteration omitted); id. at 522 (applying the
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`ejusdem generis canon to interpret the residual catchall phrase in § 264(a)). These “other
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`measures” must therefore be similar in nature to those listed in § 264(a). Id.; Skyworks, 2021
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`WL 911720, at *10. And consequently, like the enumerated measures, these “other measures”
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`are limited in two significant respects: first, they must be directed toward “animals or articles,”
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`42 U.S.C. § 264(a), and second, those “animals or articles” must be “found to be so infected or
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`contaminated as to be sources of dangerous infection to human beings,” id.; see Skyworks, 2021
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`WL 911720, at *10. In other words, any regulations enacted pursuant to § 264(a) must be
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`directed toward “specific targets ‘found’ to be sources of infection.” Id.
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 12 of 20
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`The national eviction moratorium satisfies none of these textual limitations. Plainly,
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`imposing a moratorium on evictions is different in nature than “inspect[ing], fumigat[ing],
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`disinfect[ing], sanit[izing], . . . exterminat[ing] [or] destr[oying],” 42 U.S.C. § 264(a), a potential
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`source of infection. See Tiger Lily, 992 F.3d at 524. Moreover, interpreting the term “articles”
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`to include evictions would stretch the term beyond its plain meaning. See Webster’s New
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`International Dictionary 156 (2d ed. 1945) (defining an “article” as “[a] thing of a particular class
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`or kind” or “a commodity”); see also Skyworks, 2021 WL 911720, at *10. And even if the
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`meaning of the term “articles” could be stretched that far, the statute instructs that they must be
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`“found to be so infected or contaminated as to be sources of dangerous infection to human
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`beings.” 42 U.S.C. § 264(a). The Secretary has made no such findings here. The fact that
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`individuals with COVID-19 can be asymptomatic and that the disease is difficult to detect, Mot.
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`Hr’g Rough Tr. at 26,3 does not broaden the Secretary’s authority beyond what the plain text of §
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`264(a) permits.
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`The Department reads § 264(a) another way. In the Department’s view, the grant of
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`rulemaking authority in § 264(a) is not limited in any way by the specific measures enumerated
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`in § 264(a)’s second sentence. Defs.’ Cross-Mot. at 18, 19 n.2. According to the Department,
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`Congress granted the Secretary the “broad authority to make and enforce” any regulations that
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`“in his judgment are necessary to prevent the spread of disease,” id. at 11 (internal quotation
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`marks omitted), across states or from foreign countries. In other words, the grant of rulemaking
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`authority in § 264(a)’s first sentence is a congressional deferral to “the ‘judgment’ of public
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`3 The official transcript from the motions hearing held on April 29, 2021 is forthcoming, and this
`opinion will be updated to include citations to that transcript when it becomes available.
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`health authorities about what measures they deem ‘necessary’ to prevent contagion.” Id. at 9
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`(quoting 42 U.S.C. § 264(a)).
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`The Department’s interpretation goes too far. The first sentence of § 264(a) is the
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`starting point in assessing the scope of the Secretary’s delegated authority. But it is not the
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`ending point. While it is true that Congress granted the Secretary broad authority to protect the
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`public health, it also prescribed clear means by which the Secretary could achieve that purpose.
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`See Colo. River Indian Tribes v. Nat’l Indian Gaming Comm’n, 466 F.3d 134, 139 (D.C. Cir.
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`2006). And those means place concrete limits on the steps the Department can take to prevent
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`the interstate and international spread of disease. See supra at 11. To interpret the Act otherwise
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`would ignore its text and structure.
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`At Chevron’s first step, this Court must apply the “ordinary tools of the judicial craft,”
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`Mozilla Corp. v. Fed. Commc’ns Comm’n, 940 F.3d 1, 20 (D.C. Cir. 2019), including canons of
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`construction, see ArQule, Inc. v. Kappos, 793 F. Supp. 2d 214, 219–20 (D.D.C. 2011). These
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`canons confirm what the plain text reveals. The Secretary’s authority does not extend as far as
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`the Department contends.
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`First, “[i]t is… a cardinal principle of statutory construction that [courts] must give
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`effect, if possible, to every clause and word of a statute.” Williams v. Taylor, 529 U.S. 362, 404
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`(2000) (internal quotation marks omitted). Applying that principle here, the Department’s broad
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`reading of § 264(a)’s first sentence would render the second sentence superfluous. If the first
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`sentence empowered the Secretary to enact any regulation that, in his “judgment,” was
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`“necessary” to prevent the interstate spread of communicable disease, id., there would be no
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`need for Congress to enumerate the “measures” that the Secretary “may provide for” to carry out
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`and enforce those regulations, see id. Though the surplusage canon “is not absolute,” Lamie v.
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`13
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 14 of 20
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`U.S. Tr., 540 U.S. 526, 536 (2004); Arlington Cent. Sch. Dist. Bd. of Educ. v. Murphy, 548 U.S.
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`291, 299 n.1 (2006), like the plain language, it supports a narrow reading of the statute.
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`Second, the canon of constitutional avoidance instructs that a court shall construe a
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`statute to avoid serious constitutional problems unless such a construction is contrary to the clear
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`intent of Congress. See Edward J. DeBartolo Corp. v. Fla. Gulf Coast Bldg. & Constr. Trades
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`Council, 485 U.S. 568, 575 (1988). An overly expansive reading of the statute that extends a
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`nearly unlimited grant of legislative power to the Secretary would raise serious constitutional
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`concerns, as other courts have found. See, e.g., Skyworks, 2021 WL 911720, at *9 (noting that
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`such a reading would raise doubts as to “whether Congress violated the Constitution by granting
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`such a broad delegation of power unbounded by clear limitations or principles.”); Tiger Lily, 992
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`F.3d at 523 (same); id. (“[W]e cannot read the Public Health Service Act to grant the CDC
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`power to insert itself into the landlord-tenant relationship without some clear, unequivocal
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`textual evidence of Congress’s intent to do so”); Terkel, 2021 WL 742877, at *4–6 (holding that
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`the CDC’s eviction moratorium exceeds the federal government’s power under the Commerce
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`Clause). Congress did not express a clear intent to grant the Secretary such sweeping authority.
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`And third, the major questions doctrine is based on the same principle: courts “expect
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`Congress to speak clearly if it wishes to assign to an agency decisions of vast ‘economic and
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`political significance.’” Util. Air Regul. Grp. v. EPA, 573 U.S. 302, 324 (2014) (quoting FDA v.
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`Brown & Williamson Tobacco Corp., 529 U.S. 120, 133 (2000) (emphasis added)); Am. Lung
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`Ass’n v. EPA, 985 F.3d 914, 959 (D.C. Cir. 2021) (collecting cases). There is no question that
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`the decision to impose a nationwide moratorium on evictions is one “of vast economic and
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`political significance.” Util. Air Regul. Grp., 573 U.S. at 324 (internal quotation marks omitted).
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`14
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 15 of 20
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`Not only does the moratorium have substantial economic effects,4 eviction moratoria have been
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`the subject of “earnest and profound debate across the country,” Gonzales v. Oregon, 546 U.S.
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`243, 267 (2006) (internal quotation marks omitted). At least forty-three states and the District of
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`Columbia have imposed state-based eviction moratoria at some point during the COVID-19
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`pandemic, see 86 Fed. Reg. 16,731, 16,734, though, as the CDC noted in its most recent
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`extension of the CDC Order, these protections either “have expired or are set to expire in many
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`jurisdictions,” id. at 16,737 n.35. Congress itself has twice addressed the moratorium on a
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`nationwide-level—once through the CARES Act, see Pub. L. No. 116-136, § 4024, 134 Stat. 281
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`(2020), and again through the Consolidated Appropriations Act, see Pub. L. No. 116-260, § 502,
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`134 Stat. 1182 (2020).
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`Accepting the Department’s expansive interpretation of the Act would mean that
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`Congress delegated to the Secretary the authority to resolve not only this important question, but
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`endless others that are also subject to “earnest and profound debate across the country.”
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`Gonzales, 546 U.S. at 267 (internal quotation marks omitted). Under its reading, so long as the
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`Secretary can make a determination that a given measure is “necessary” to combat the interstate
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`or international spread of disease, there is no limit to the reach of his authority.5
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`4 In their briefing, the parties dispute the economic impact of the CDC order, see, e.g., Pl.’s
`Mem. at 2 (estimating the nation’s landlords will suffer “$55-76 billion” in losses as a
`consequence of the initial moratorium); Def.’s Cross-Mot. at 15 n.4 (disputing these figures).
`Regardless, the economic impact of the CDC Order is substantial. Indeed, the CDC itself
`estimates that “as many as 30-40 million people in America could be at risk of eviction” absent
`the CDC’s moratorium as well as other State and local protections, 85 Fed. Reg. at 55,294–95.
`The CDC Order also qualifies as “a major rule under the Congressional Review Act,” id. at
`55,296, which means it is expected to have “an annual effect on the economy of $100,000,000 or
`more,” 5 U.S.C. § 804(2).
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`5 The only other potential limitation, imposed by regulation, is that the Director of the CDC
`would need to conclude that state and local health authorities have not taken sufficient measures
`to prevent the spread of communicable disease. See 42 C.F.R. § 70.2.
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`15
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`Case 1:20-cv-03377-DLF Document 54 Filed 05/05/21 Page 16 of 20
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`“Congress could not have intended to delegate” such extraordinary power “to an age