Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 1
`
`No. 21-5256
`
`
`
`
`IN THE UNITED STATES COURT OF APPEALS
`FOR THE SIXTH CIRCUIT
`
`
`TIGER LILY, LLC, et al.,
`
`
`Plaintiffs-Appellees,
`
`
`v.
`
`U.S. DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al.,
`
`
`
`
`Defendants-Appellants.
`
`
`
`On Appeal from the United States District Court
`for the Western District of Tennessee
`
`
`EMERGENCY MOTION FOR STAY PENDING APPEAL AND
`FOR IMMEDIATE ADMINISTRATIVE STAY
`
`
`
`BRIAN M. BOYNTON
`Acting Assistant Attorney General
`JOSEPH C. MURPHY, JR.
`Acting United States Attorney
`ALISA B. KLEIN
`BRIAN J. SPRINGER
`Attorneys, Appellate Staff
`Civil Division, Room 7537
`U.S. Department of Justice
`950 Pennsylvania Avenue NW
`Washington, D.C. 20530
`(202) 616-5446
`brian.j.springer@usdoj.gov
`
`
`

`

`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 2
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`TABLE OF CONTENTS
`
`
`The CDC’s Temporary Moratorium On Certain Evictions .................................... 4
`
`Statutory And Regulatory Background ...................................................................... 3
`
`Page
`
`INTRODUCTION .................................................................................................................. 1
`
`STATEMENT ........................................................................................................................... 3
`
`I.
`
`II.
`
`III. District Court Proceedings ........................................................................................... 8
`
`ARGUMENT .......................................................................................................................... 10
`
`I.
`
`The Balance Of Harms And Public Interest Overwhelmingly
`Warrant A Stay Pending Appeal ................................................................................ 10
`
`
`II.
`
`CONCLUSION ...................................................................................................................... 19
`
`CERTIFICATE OF COMPLIANCE
`
`CERTIFICATE OF SERVICE
`
`ADDENDUM
`
`
`
`The Government Is Likely To Succeed On The Merits ........................................ 14
`
`
`
`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 3
`
`TABLE OF AUTHORITIES
`
`Cases:
`
`Page(s)
`
`A. L. A. Schechter Poultry Corp. v. United States,
`295 U.S. 495 (1935) ............................................................................................................. 17
`
`
`Brown v. Azar, --- F. Supp. 3d ---,
`No. 20-3702, 2020 WL 6364310 (N.D. Ga. Oct. 29, 2020), appeal filed,
`No. 20-14210 (11th Cir. Nov. 9, 2020), mot. for inj. pending appeal denied,
`No. 20-14210 (11th Cir. Dec. 17, 2020) ....................................................... 11, 13, 14, 15
`
`
`Chambless Enters., LLC v. Redfield,
`No. 20-1455, 2020 WL 7588849 (W.D. La. Dec. 22, 2020), appeal filed,
` No. 21-30037 (5th Cir. Jan. 22, 2021) ........................................................................ 13, 15
`
`FPC v. Hope Natural Gas Co.,
`320 U.S. 591 (1944) ...................................................................................................... 17, 18
`
`
`Gundy v. United States,
`139 S. Ct. 2116 (2019) ......................................................................................................... 17
`
`
`Independent Turtle Farmers of La., Inc. v. United States,
`703 F. Supp. 2d 604 (W.D. La. 2010) ............................................................................... 15
`
`
`League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer,
`814 F. App’x 125 (6th Cir. 2020) (unpub.) ...................................................................... 11
`
`
`Mistretta v. United States,
`488 U.S. 361 (1989) ...................................................................................................... 17, 18
`
`
`National Broadcasting Co. v. United States,
`319 U.S. 190 (1943) ............................................................................................................. 17
`
`
`New York Central Securities Corp. v. United States,
`287 U.S. 12 (1932) ................................................................................................................ 17
`
`
`Panama Refining Co. v. Ryan,
`293 U.S. 388 (1935) ............................................................................................................. 17
`
`
`
`
`
`
`ii
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 4
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`Tiger Lily LLC v. U.S. Dep’t of Hous. & Urban Dev., --- F. Supp. 3d ---,
` No. 20-2692, 2020 WL 7658126 (W.D. Tenn. Nov. 6, 2020) ....................... 2, 9, 13, 14
`
`United States v. Comstock,
`560 U.S. 126 (2010) ............................................................................................................. 11
`
`
`Whitman v. American Trucking Ass’ns,
`531 U.S. 457 (2001) ............................................................................................................. 18
`
`
`Yakus v. United States,
`331 U.S. 414 (1944) ............................................................................................................. 17
`
`
`U.S. Constitution:
`
`Art. I, § 8, cl. 3 (Commerce Clause) ..................................................................................... 11
`
`Statutes:
`
`American Rescue Plan Act of 2021,
` Pub. L. No. 117-2, § 3201(a)(1), 135 Stat. 4, 54 (2021) .................................................... 8
`
`Consolidated Appropriations Act, 2021,
` Pub. L. No. 116-260, 134 Stat. 1182 (2020):
`§ 501(a)(1), 134 Stat. at 2070 ........................................................................................... 7
`§ 501(c)(2), 134 Stat. at 2072-73 ..................................................................................... 7
`§ 502, 134 Stat. at 2078-79 ................................................................................. 7, 10, 16
`
`Public Health Service Act,
` Pub. L. No. 78-410, 58 Stat. 682 (1944) ............................................................................. 3
`42 U.S.C. § 264(a) ..................................................................................... 3, 9, 10, 14, 15
`42 U.S.C. § 264(b) ........................................................................................................... 15
`42 U.S.C. § 264(c) ........................................................................................................... 15
`42 U.S.C. § 264(d) ........................................................................................................... 15
`
`
`20 U.S.C. § 3508(b) ................................................................................................................... 4
`
`Regulation:
`
`42 C.F.R. § 70.2 .......................................................................................................................... 4
`
`
`
`
`
`iii
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`

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`Legislative Materials:
`
`167 Cong. Rec. H1281 (daily ed. Mar. 10, 2021) ................................................................. 16
`
`H.R. Rep. No. 78-1364 (1944) .......................................................................................... 3, 14
`
`U.S. House Comm. on Fin. Servs., COVID-19 Stimulus Package:
` Temporary Extension of the CDC Eviction Moratoium & Emergency Rental Assistance,
`https://go.usa.gov/xss3y (last visited Mar. 18, 2021) ................................................... 16
`
`
`Other Authorities:
`
`Tom Bailey, State Supreme Court tells all West Tennessee judges: Eviction ban lifted,
`Daily Memphian (March 16, 2021), https://dailymemphian.com/
`section/business/article/20703/rulings-effect-onevictions-is-unclear-renters .......... 3
`
`
`CDC, HHS/CDC Temporary Halt in Residential Evictions to Prevent the
`Further Spread of COVID-19: Frequently Asked Questions,
`https://go.usa.gov/x7dhb (last visited Mar. 18, 2021) .............................................. 5, 6
`
`
`Eviction Lab, COVID-19 Housing Policy Scorecard,
`https://evictionlab.org/covid-policy-scorecard (last visited Mar. 18, 2021) ............... 6
`
`
`Order, KBW Inv. Props. LLC v. Azar,
`No. 20-4852 (S.D. Ohio Sept. 25, 2020) ......................................................................... 13
`
`
`Reorganization Plan No. 3 of 1966,
`31 Fed. Reg. 8855 (June 25, 1966), reprinted in 80 Stat. 1610 (1966) ......................... 3, 4
`
`Temporary Halt in Residential Evictions to Prevent the Further Spread
` of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020) ............................... 4, 5 ,6, 7, 12, 13
`
`Temporary Halt in Residential Evictions to Prevent the Further Spread
`of COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021) ........................................... 7, 8, 12, 13
`
`
`
`
`
`iv
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 6
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`INTRODUCTION
`
`The government respectfully seeks a stay pending appeal and immediate
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`administrative stay of the district court’s judgment of March 16, 2021, declaring
`
`unlawful a temporary moratorium on certain evictions that was issued by the Centers
`
`for Disease Control and Prevention (CDC) as one of several measures to combat the
`
`spread of COVID-19. In issuing the moratorium, the CDC explained that eviction
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`of families and individuals significantly increases risks of contagion. Among other
`
`reasons, maintaining appropriate distancing and effectuating other precautions are
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`vastly more difficult when families are placed in homeless shelters or similar facilities.
`
`Congress subsequently extended the initial moratorium by statute, and the CDC has
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`temporarily extended it again. More than fifty thousand new COVID-19 cases
`
`continue to be reported each day.
`
`A stay is plainly warranted. The district court did not question that setting
`
`aside the moratorium would increase the already significant risks to the public health.
`
`And, as the district court recognized in denying plaintiffs’ request for a preliminary
`
`injunction, plaintiffs suffer no irreparable injury as a result of the moratorium. The
`
`CDC Order temporarily prohibits evictions of certain persons for failure to pay rent.
`
`It does not, however, excuse their obligations to pay rent or to comply with other
`
`obligations of their lease. Nor does it preclude a landlord from commencing a state
`
`court eviction proceeding, provided that actual eviction does not occur while the
`
`Order remains in effect. Thus, the district court explained, plaintiffs’ “loss of rental
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 7
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`income” is “merely temporary” because the CDC Order “does not relieve tenants of
`
`their obligation to pay rent,” and it “allows [p]laintiffs to charge and collect fees,
`
`penalties, or interest as the result of a tenant failing to pay rent on a timely basis.”
`
`Tiger Lily LLC v. U.S. Dep’t of Hous. & Urban Dev., --- F. Supp. 3d ---, No. 20-2692,
`
`2020 WL 7658126, at *8 (W.D. Tenn. Nov. 6, 2020). And, in extending the
`
`moratorium, Congress appropriated $25 billion in emergency rental assistance
`
`designed to reach landlords whose tenants have rent in arrears, and it recently
`
`appropriated an additional $21 billion for the same purpose.
`
`The government also has a substantial likelihood of success on appeal. The
`
`district court recognized that the Public Health Service Act vests broad authority in
`
`the CDC to take measures to prevent the spread of communicable diseases. It
`
`concluded, however, that the broad terms of the authority militated in favor of a
`
`narrow construction to avoid the possibility that the statute might constitute an
`
`unconstitutional delegation of authority. The court posed various hypothetical
`
`exercises of power, none of which suggests that the CDC exceeded its authority here.
`
`Congress explicitly recognized the source of the CDC’s authority to issue the
`
`moratorium under the Public Health Service Act and gave its legislative imprimatur to
`
`the CDC’s understanding of that statute. The CDC acted well within its authority in
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`issuing a temporary eviction moratorium as one means of combatting the
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`unprecedented pandemic that has caused more than half a million deaths in the
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`United States.
`
`2
`
`

`

`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 8
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`As the result of the district court’s ruling, local courts have already been
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`informed that evictions may proceed in the Western District of Tennessee.1 To
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`preserve the status quo, we ask this Court to issue a stay pending appeal and an
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`immediate administrative stay pending the Court’s consideration of this stay motion.2
`
`I.
`
`Statutory And Regulatory Background
`
`STATEMENT
`
`In 1944, as part of the Public Health Service Act, Pub. L. No. 78-410, 58 Stat.
`
`682, Congress authorized the Secretary of Health and Human Services 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.” 42 U.S.C. § 264(a). This statute codified the federal government’s “basic
`
`authority to make regulations to prevent the spread of disease into this country or
`
`between the States.” H.R. Rep. No. 78-1364, at 24 (1944).3
`
`
`1 See Tom Bailey, State Supreme Court tells all West Tennessee judges: Eviction ban lifted,
`Daily Memphian (March 16, 2021),
`https://dailymemphian.com/section/business/article/20703/rulings-effect-
`onevictions-is-unclear-renters.
`2 As required by Rule 8 of the Federal Rules of Appellate Procedure, the
`government filed a motion for a stay pending appeal in district court. See RE 106,
`Page ID # 2911-2918. We will inform the Court promptly when the district court
`acts on that motion. Plaintiffs oppose this motion.
`3 The statute assigned authority to the Surgeon General, but these statutory
`powers and functions were later transferred to the Secretary of Health, Education,
`and Welfare, now the Secretary of Health and Human Services. See Reorganization
`
`3
`
`

`

`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 9
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`The Secretary’s implementing regulations delegate enforcement authority to the
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`CDC, a division of the Department of Health and Human Services (HHS). The
`
`governing regulation provides that when the CDC Director “determines that the
`
`measures taken by health authorities of any State . . . are insufficient to prevent the
`
`spread of any of the communicable diseases” between or among States, the CDC
`
`Director may “take such measures to prevent such spread of the diseases as he/she
`
`deems reasonably necessary.” 42 C.F.R. § 70.2.
`
`II. The CDC’s Temporary Moratorium On Certain Evictions
`
`A. To curb the spread of COVID-19, “Federal, State, and local governments
`
`have taken unprecedented or exceedingly rare actions, including border closures,
`
`restrictions on travel, stay-at-home orders, mask requirements, and eviction
`
`moratoria.” Temporary Halt in Residential Evictions to Prevent the Further Spread
`
`of COVID-19, 85 Fed. Reg. 55,292, 55,292 (Sept. 4, 2020). This case involves one
`
`such measure—a temporary moratorium on the eviction of certain individuals who
`
`otherwise would likely become homeless or move into settings such as crowded
`
`shelters, thereby increasing the spread of COVID-19. Id. at 55,294-96.
`
`The CDC issued the temporary eviction moratorium in September 2020,
`
`pursuant to the agency’s statutory and regulatory authority to prevent the interstate
`
`spread of communicable disease. See 85 Fed. Reg. at 55,292. While the moratorium
`
`
`Plan No. 3 of 1966, 31 Fed. Reg. 8855 (June 25, 1966), reprinted in 80 Stat. 1610 (1966);
`see also 20 U.S.C. § 3508(b).
`
`4
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 10
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`remains in effect, landlords may not evict covered persons from residential properties
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`for the nonpayment of rent. Id. at 55,292, 55,297. The moratorium applies only to
`
`individuals who, if evicted, would likely become homeless or be forced to live in close
`
`quarters in a new congregate or shared living setting. Id. at 55,293. To qualify as a
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`“covered person,” a tenant must provide a sworn declaration to her landlord
`
`indicating that she (1) “has used best efforts to obtain all available government
`
`assistance for rent or housing”; (2) satisfies certain income requirements; (3) “is
`
`unable to pay the full rent . . . 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) “is using best efforts to make timely partial payments that are
`
`as close to the full payment as . . . permit[ted]”; and (5) “has no other available
`
`housing options” and therefore would likely become homeless or be forced to “live in
`
`close quarters in a new congregate or shared living setting” if evicted. Id. (footnote
`
`omitted).
`
`Although the CDC Order temporarily prohibits evictions of covered persons
`
`for failure to pay rent, it does not excuse their obligations to pay rent or to comply
`
`with other obligations of their lease. 85 Fed. Reg. at 55,294. And even if a tenant
`
`qualifies as a covered person, the CDC Order does not bar a landlord from
`
`commencing a state court eviction proceeding, provided that actual eviction does not
`
`occur while the Order remains in effect. See id. at 55,293 (defining “evict” as “to
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`remove or cause the removal of ”); see also CDC, HHS/CDC Temporary Halt in
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`5
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 11
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`Residential Evictions to Prevent the Further Spread of COVID-19: Frequently Asked Questions
`
`1, https://go.usa.gov/x7dhb (last visited Mar. 18, 2021) (stating that landlords are not
`
`prevented from “starting eviction proceedings, provided that the actual eviction of a
`
`covered person for non-payment of rent does NOT take place during the period of
`
`the Order”).
`
`In issuing the Order, the CDC relied on data showing that congregate living
`
`situations, such as homeless shelters, significantly exacerbate the spread of COVID-
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`19. See 85 Fed. Reg. at 55,294-95. Maintaining appropriate distancing and taking
`
`other precautionary measures are far more difficult when families are relocated to
`
`these facilities, and the CDC noted the “[e]xtensive outbreaks of COVID-19 . . . in
`
`homeless shelters” across the country. Id. at 55,295. Many families are experiencing
`
`increased economic hardship as a result of the pandemic, and research indicates that
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`as many as 30 to 40 million people in the United States could be at risk of eviction in
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`the absence of state and local protections. Id.
`
`The Order explained that, despite the various measures that states and localities
`
`have put in place, “COVID-19 continues to spread and further action is needed.” 85
`
`Fed. Reg. at 55,292. The CDC cited a state-by-state analysis indicating that “eviction
`
`moratoria and other protections from eviction have expired or are set to expire in
`
`many jurisdictions.” Id. at 55,296 n.36 (citing Eviction Lab, COVID-19 Housing Policy
`
`Scorecard, https://evictionlab.org/covid-policy-scorecard (last visited Mar. 18, 2021)).
`
`6
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 12
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`B. The CDC Order was set to expire on December 31, 2020. See 85 Fed. Reg.
`
`at 55,297. In December 2020, Congress—by overwhelming majority—enacted
`
`legislation that extended the Order through January 31, 2021. In relevant part, that
`
`legislation 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’’ (85 Fed. Reg. 55292 (September 4, 2020) is extended through
`January 31, 2021, notwithstanding the effective dates specified in such Order.
`
`Consolidated Appropriations Act, 2021, Pub. L. No. 116-260, div. N, tit. V, § 502,
`
`134 Stat. 1182, 2078-2079 (2020) (2021 Appropriations Act). The same legislation
`
`appropriated $25 billion in emergency rental assistance designed to reach landlords
`
`whose tenants have fallen behind in rent because of the pandemic. See id. § 501(a)(1),
`
`(c)(2), 134 Stat. at 2070, 2072-73.
`
`C. On January 29, 2021, the CDC extended the Order through March 31,
`
`2021. See Temporary Halt in Residential Evictions to Prevent the Further Spread of
`
`COVID-19, 86 Fed. Reg. 8020 (Feb. 3, 2021).
`
`That order documented the ongoing danger from and increased severity of the
`
`pandemic in the United States since the issuance of the original order. As of January
`
`21, 2021, more than 24.4 million COVID-19 cases, resulting in more than 400,000
`
`deaths, had been reported in the United States, with vast numbers of new cases arising
`
`daily. 86 Fed. Reg. at 8021. On a single day in January 2021 alone, more than
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`300,000 COVID-19 cases were reported to the CDC, a figure approximately seven
`
`7
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 13
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`times the highest daily cases in April 2020 and four times the highest daily cases in
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`July 2020. Id. The need for swift and effective action was underscored by the
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`emergence of new variants of SARS-CoV-2, the virus that causes COVID-19, some
`
`of which are transmitted even more easily than the original strain of the virus. Id.
`
`The CDC Director therefore determined that “[t]he rapidly changing nature of the
`
`pandemic requires not only that CDC act swiftly, but also deftly to ensure that its
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`actions are commensurate with the threat.” Id. at 8025.
`
`The order discussed newly available evidence “indicat[ing] that evictions
`
`substantially contribute to COVID-19 transmission.” 86 Fed. Reg. at 8022. The
`
`order cited data demonstrating that eviction filings were ongoing and that “large
`
`numbers of evictions” would occur if the moratorium were lifted prematurely. Id. at
`
`8025. The CDC thus concluded that extending the temporary eviction moratorium
`
`was reasonably necessary to prevent the further spread of COVID-19. Id. at 8024.
`
`D. On March 11, 2021, Congress appropriated an additional $21.5 billion in
`
`funding for emergency rental assistance designed to reach landlords whose tenants
`
`have fallen behind in rent due to the pandemic. See American Rescue Plan Act of
`
`2021, Pub. L. No. 117-2, § 3201(a)(1), 135 Stat. 4, 54.
`
`III. District Court Proceedings
`
`A. Plaintiffs are entities that own or manage residential rental properties in the
`
`Western District of Tennessee. Compl., RE 1, ¶¶ 1–8, Page ID # 7-8. They
`
`challenged the CDC order on various statutory and constitutional grounds.
`
`8
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 14
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`The district court denied plaintiffs’ request for a preliminary injunction, finding
`
`that plaintiffs failed to establish irreparable harm. Tiger Lily LLC v. U.S. Dep’t of Hous.
`
`& Urban Dev., --- F. Supp. 3d ---, No. 20-2692, 2020 WL 7658126 (W.D. Tenn. Nov. 6,
`
`2020). The court explained that plaintiffs’ “loss of rental income” is “merely
`
`temporary” because the CDC Order “does not relieve tenants of their obligation to
`
`pay rent,” and it “allows [p]laintiffs to charge and collect fees, penalties, or interest as
`
`the result of a tenant failing to pay rent on a timely basis.” Id. at *8. The court noted
`
`that plaintiffs failed to show that they do not have an adequate remedy at law for this
`
`alleged harm, because they may sue their tenants for unpaid rent. See id.
`
`B. After merits briefing, the district court entered final judgment on March 16,
`
`2021, declaring that the CDC Order exceeds the agency’s statutory authority and is
`
`unenforceable in the Western District of Tennessee. See Judgment, RE 104, at 2, Page
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`ID # 2907; see also Op., RE 103, at 20, Page ID # 2905.
`
`The district court recognized that the first sentence of 42 U.S.C. § 264(a)
`
`authorizes the CDC Director to “make and enforce such regulations as in his
`
`judgment are necessary to prevent the introduction, transmission, or spread of
`
`communicable diseases . . . from one State or possession into any other State or
`
`possession.” Op. 12, RE 103, Page ID # 2897 (quoting 42 U.S.C. § 264(a)). The
`
`court did not “minimize the gravity of the pandemic” or question the CDC’s
`
`judgment that the temporary eviction moratorium is necessary to prevent the
`
`interstate spread of COVID-19. Op. 13, RE 103, Page ID # 2898.
`
`9
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 15
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`Nonetheless, the court ruled that the authority conferred in the first sentence
`
`of § 264(a) is limited to measures similar to those enumerated in that provision’s
`
`second sentence, which specifies that the agency may “provide for . . . 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.” Op. 12-16, RE 103, Page ID # 2897-2901 (quoting 42
`
`U.S.C. § 264(a)) (emphasis omitted). The court reasoned that, absent this limitation,
`
`the grant of authority to take such measures that the CDC Director finds necessary to
`
`control the interstate spread of communicable disease would amount to an
`
`unconstitutional delegation of legislative power. Op. 17-19, RE 103, Page ID # 2902-
`
`2904. The court ruled that the text of § 264 cannot be read to encompass the
`
`temporary eviction moratorium, even though the 2021 Appropriations Act itself
`
`specified that Congress was extending the temporary eviction moratorium that the
`
`CDC issued “under section 361 of the Public Health Service Act (42 U.S.C. 264).”
`
`2021 Appropriations Act, § 502, 134 Stat. at 2078-79; see Op. 19-20, RE 103, Page ID
`
`# 2904-2905.
`
`ARGUMENT
`
`I.
`
`The Balance Of Harms And Public Interest Overwhelmingly
`Warrant A Stay Pending Appeal
`
`The district court correctly concluded that plaintiffs suffer no irreparable injury
`
`as a result of the temporary moratorium. It is equally clear that setting aside the
`
`10
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`

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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 16
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`moratorium exacerbates the significant public-health risks identified by the CDC and
`
`recognized by Congress in its legislative extension of the moratorium. This Court has
`
`previously recognized that immediate stays are warranted when a district court halts
`
`government efforts to combat the spread of COVID-19, and it has done so even
`
`when, in sharp contrast to this case, plaintiffs faced “the very real risk of losing their
`
`businesses.” League of Indep. Fitness Facilities & Trainers, Inc. v. Whitmer, 814 F. App’x
`
`125, 129 (6th Cir. 2020) (unpub.). An immediate stay is likewise warranted here.
`
`A. The “gravity of the pandemic” is undeniable. Op. 13, RE 103, Page ID
`
`# 2898. COVID-19 has killed more than half a million Americans, imposed critical
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`strains on U.S. healthcare systems, devastated domestic industries, and triggered
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`unprecedented restrictions on interstate and foreign travel. Against that backdrop of
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`this evolving and urgent situation, “federal courts across the country have routinely
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`concluded that undoing orders deemed necessary by public health officials and
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`experts to contain a contagious and fast-spreading disease would result in
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`comparatively more severe injury to the community.” Brown v. Azar, --- F. Supp. 3d ---,
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`No. 20-3702, 2020 WL 6364310, at *22 (N.D. Ga. Oct. 29, 2020) (refusing to enjoin
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`the CDC Order), appeal filed, No. 20-14210 (11th Cir. Nov. 9, 2020), mot. for inj. pending
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`appeal denied, No. 20-14210 (11th Cir. Dec. 17, 2020).
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`There is no doubt that Congress can act to control an “interstate epidemic.”
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`United States v. Comstock, 560 U.S. 126, 134-35, 148 (2010) (citing U.S. Const. Art. I, § 8,
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`cl. 3 (the Commerce Clause)). And the CDC’s temporary moratorium on evictions
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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 17
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`has been a crucial part of the federal government’s broader effort to curb the spread
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`of COVID-19. The CDC found that, absent the moratorium, 30 to 40 million people
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`in the United States could be at risk of eviction, and a significant portion of that
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`population would likely be forced to move into congregate living situations, such as
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`housing shelters, or to become homeless. 85 Fed. Reg. at 55,294-95. Because
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`COVID-19 spreads easily among people in close contact, the risk of transmission
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`would be highly exacerbated, with one study finding that “household contacts are
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`estimated to be [six] times more likely to become infected by an index case of
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`COVID-19 than other close contacts.” Id. at 55,294. In part because maintaining
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`social distance is particularly difficult in these settings, “[e]xtensive outbreaks of
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`COVID-19 have been identified in homeless shelters,” including in Seattle, Boston,
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`and San Francisco. Id. at 55,295.
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`State efforts at establishing moratoria have proven inadequate to curb the risks
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`posed by evictions. The importance of the CDC moratorium is highlighted by the
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`experience in states that imposed their own moratoria and then rescinded the
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`restrictions. The CDC found that lifting eviction moratoria led to a 40 percent
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`increased risk of contracting COVID-19 among evicted persons and family or friends
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`with whom they shared housing after eviction. 86 Fed. Reg. at 8022. Moreover, the
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`same models predicted an increase in overall community transmission even among
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`those who did not share housing when evictions occurred. Id.
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`Case: 21-5256 Document: 5 Filed: 03/18/2021 Page: 18
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`The CDC’s analysis underscored the extent to which state and local measures
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`have insufficiently addressed the spread of COVID-19. Even where states have
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`imposed some forms of moratoria, those restrictions have often lapsed, and a state-
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`by-state analysis indicated that “eviction moratoria and other protections from
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`eviction have expired or are set to expire in many jurisdictions.” 85 Fed. Reg. at
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`55,296 n.36. Data comparing COVID-19 spread in states that lifted eviction
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`moratoria with states that maintained eviction moratoria “showed significant increases
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`in COVID-19 incidence and mortality approximately 2-3 months after eviction
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`moratoria were lifted.” 86 Fed. Reg. at 8022. The data indicated that “over 433,000
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`cases of COVID-19 and over 10,000 deaths could be attributed to lifting state
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`moratoria.” Id. Thus, there is no question that interference with the temporary
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`eviction moratorium will cause severe and irreparable harm.
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`B. By contrast, every court to consider the issue—including the district court
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`in this case—has concluded that plaintiff landlords face no irreparable injury as a
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`result of the moratorium.4 As discussed above, the CDC Order does not excuse
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`tenants’ obligations to pay rent or to comply with other obligations of their lease, and
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`4 See Tiger Lily LLC v. U.S. Dep’t of Housing & Urban Dev., --- F. Supp. 3d ---,
`No. 20-2692, 2020 WL 7658126 (W.D. Tenn. Nov. 6, 2020); Brown v. Azar, --- F.
`Supp. 3d ---, No. 20-3702, 2020 WL 6364310 (N.D. Ga. Oct. 29, 2020), appeal filed,
`No. 20-14210 (11th Cir. Nov. 9, 2020), mot. for inj. pending appeal denied, No. 20-14210
`(11th Cir. Dec. 17, 2020); Chambless Enters., LLC v. Redfield, No. 20-1455, 2020 WL
`7588849 (W.D. La. Dec. 22, 2020), appeal filed, No. 21-30037 (5th Cir. Jan. 22, 2021);
`Order, KBW Inv. Props. LLC v. Azar, ECF No. 16, No. 20-4852 (S.D. Ohio Sept. 25,
`2020).
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`it does not bar landlords from pursuing state court eviction proceedings as long as the
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`eviction itself does not occur while the moratorium remains in place. The district
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`court correctly emphasized that plaintiffs’ “temporary monetary harm” is “the
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`antithesis” of “irreparable harm.” Tiger Lily, 2020 WL 7658126, at *8. A tenant’s
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`inability to remain current on rent in the midst of the economic destruction wrought
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`by the pandemic does not demonstrate that the tenant will be unable to pay the debt
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`in the future. See Brown, 2020 WL 6364310, at *19-20. Indeed, as the Bro