RECOMMENDED FOR PUBLICATION
`Pursuant to Sixth Circuit I.O.P. 32.1(b)
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`File Name: 21a0074p.06
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`UNITED STATES COURT OF APPEALS
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`FOR THE SIXTH CIRCUIT
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`TIGER LILY, LLC, et al.,
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`Plaintiff-Appellees,
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`v.
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`UNITED STATES DEPARTMENT OF HOUSING AND
`URBAN DEVELOPMENT, et al.,
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`Defendants-Appellants.
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`No. 21-5256
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`On Emergency Motion for Stay Pending Appeal and Immediate Administrative Stay.
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`United States District Court for the Western District of Tennessee at Memphis;
`No. 2:20-cv-02692—Mark S. Norris Sr., District Judge.
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`Decided and Filed: March 29, 2021
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`Before: NORRIS, THAPAR, and BUSH, Circuit Judges.
`_________________
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`COUNSEL
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`ON MOTION AND REPLY: Alisa B. Klein, Brian J. Springer, UNITED STATES
`DEPARTMENT OF JUSTICE, Washington, D.C., for Appellants. ON RESPONSE: S. Joshua
`Kahane, Aubrey B. Greer, GLANKLER BROWN, PLLC, Memphis, Tennessee, for Appellees.
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`_________________
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`ORDER
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`_________________
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`Last September, the Centers for Disease Control and Prevention ordered a nationwide
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`moratorium on residential evictions. As justification for its involvement in landlord-tenant
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`relations, the CDC cited a provision of the Public Health Service Act authorizing it to sanitize
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`property exposed to contagion. Plaintiffs in this case—all of whom own or manage residential
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 2
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`rental properties—challenged the CDC’s order and its subsequent extension. The district court
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`entered judgment in favor of Plaintiffs. The government now moves to stay the district court’s
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`order pending appeal. We deny its motion.
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`I
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`In March 2020, Congress responded to the wide-ranging economic effects of the COVID-
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`19 pandemic by passing the CARES Act. See Pub. L. No. 116-136, 134 Stat. 281 (2020).
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`Among other economic relief provisions, the Act included a 120-day moratorium on eviction
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`filings based on nonpayment of rent for tenants residing in certain federally financed rental
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`properties. Id. § 4024(b). That moratorium expired on July 25, 2020.
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`After the congressionally authorized moratorium expired, the CDC Director unilaterally
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`issued an order declaring a new moratorium, halting evictions of certain “covered persons”
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`through December 31, 2020. 85 Fed. Reg. 55292-01. The CDC purported to find statutory
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`authority for the Halt Order in Section 361 of the Public Health Service Act, codified at
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`42 U.S.C. § 264. Id. That section provides the Secretary of Health and Human Services with the
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`power to “make and enforce such regulations as in his judgment are necessary to prevent the
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`introduction, transmission, or spread of communicable diseases.” 42 U.S.C. § 264(a).1 To carry
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`out and enforce those regulations, the statute authorizes the Secretary to provide for “inspection,
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`fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found
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`to be so infected or contaminated as to be sources of dangerous infection to human beings, and
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`other measures, as in his judgment may be necessary.” Id. The statute also grants the Secretary
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`authority to make and enforce regulations for quarantining infected persons. Id. § 264(b–d). The
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`Secretary has delegated its powers under § 264 to the CDC by regulation. See 42 C.F.R. § 70.2.
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`Shortly after the CDC issued the Halt Order, Congress passed the Consolidated
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`Appropriations Act, which extended the Halt Order from December 31 to January 31. Pub. L.
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`No. 116-260, § 502, 134 Stat. 1182 (2020).
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`1The statute actually grants this authority to the Surgeon General. But that office was abolished in 1966,
`and all statutory powers vested in the Surgeon General were transferred to the HHS Secretary. 31 Fed. Reg. 8855;
`20 U.S.C. § 3508. The Secretary retained those powers even after the Office of the Surgeon General was reinstated
`in 1987.
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 3
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`On January 29, 2021, just before that statutory extension lapsed, the CDC Director issued
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`a new directive extending the order through March 31, 2021. 86 Fed. Reg. 8020-01. She again
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`relied only on the generic rulemaking power arising from the Public Health Service Act. Id.
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`(citing 42 U.S.C. § 264(a)).
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`In September 2020, Plaintiffs filed suit against the government seeking, as relevant here,
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`a declaratory judgment that the Halt Order violated the Administrative Procedures Act and a
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`preliminary injunction barring its enforcement. The district court denied the preliminary
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`injunction because it found that Plaintiffs’ loss of income did not rise to the level of an
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`irreparable injury. The government then moved for judgment on the pleadings. Plaintiffs
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`countered with a Rule 56 motion for judgment on the administrative record. The district court
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`granted judgment in Plaintiffs’ favor, finding that the Halt Order exceeded the CDC’s statutory
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`authority under 42 U.S.C. § 264(a).
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`The day after the district court entered judgment, the government filed its appeal and
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`moved the district court for an emergency stay and immediate administrative stay. Plaintiffs
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`notified the district court that they intended to take two weeks to respond, and the district court
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`did not order otherwise. The government then filed the stay motion now before us.2
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`II
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`We consider four factors when deciding whether to stay a judgment pending appeal:
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`“(1) whether the stay applicant has made a strong showing that he is likely to succeed on the
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`merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance
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`of the stay will substantially injure the other parties interested in the proceeding; and (4) where
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`the public interest lies.” Nken v. Holder, 556 U.S. 418, 434 (2009) (quotation and brackets
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`2Plaintiffs initially refused our order for a substantive response to the government’s stay motion, objecting
`that the motion was procedurally improper. While not a jurisdictional limitation, “[a] party must ordinarily move
`first in the district court for . . . a stay of the judgment or order of a district court pending appeal.” Fed. R. App. P.
`8(a)(1)(A). But if “moving first in the district court would be impracticable” or if “a motion having been made, the
`district court…failed to afford the relief requested,” we may grant initial relief. Fed. R. App. P. 8(a)(2)(A)(i)−(ii).
`Here, the government did move first in the district court, but Plaintiffs notified the court that they intend to use the
`full time (14 days) to respond. See W.D. Tenn. LR 7.2(a)(2). Given the Halt Order’s looming March 31 expiration,
`we construe the district court’s decision not to order a more expedited response as a denial of the government’s
`requested relief. The normal appellate rules thus present no bar to the government’s motion.
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 4
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`omitted). When a party has no likelihood of success on the merits, we may not grant a stay.
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`SawariMedia, LLC v. Whitmer, 963 F.3d 595, 596 (6th Cir. 2020) (quoting Daunt v. Benson,
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`956 F.3d 396, 421–22 (6th Cir. 2020)).
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`Whether the government is likely to succeed on the merits boils down to a simple
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`question: did Congress grant the CDC the power it claims? We address that question of statutory
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`interpretation de novo. See Smith v. Thomas, 911 F.3d 378, 381 (6th Cir. 2018).3 When
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`analyzing the statute, “we look first to its language, giving the words used their ordinary
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`meaning.” Artis v. District of Columbia, 138 S. Ct. 594, 603 (2018) (citation and internal
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`quotation marks omitted). We then apply “established principles of interpretation.” POM
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`Wonderful LLC v. Coca-Cola Co., 134 S. Ct. 2228, 2236 (2014). If, after those steps, the
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`statute’s meaning is clear, our task is done. See BedRoc Ltd. v. United States, 541 U.S. 176, 183
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`(2004).
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`Because Congress’s express authorization of the Halt Order expired on January 31, the
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`CDC points to 42 U.S.C. § 264 as the sole statutory basis for the order’s extension. But the
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`terms of that statute cannot support the broad power that the CDC seeks to exert.
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`To slow disease transmission, the HHS Secretary, and the CDC by extension, can impose
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`specific restrictions on both property interests, see 42 U.S.C. § 264(a), and liberty interests, see
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`id. § 264(d). As to the former, the Secretary “may provide for such inspection, fumigation,
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`disinfection, sanitation, pest extermination, destruction of animals or articles found to be so
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`infected or contaminated as to be sources of dangerous infection to human beings, and other
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`measures, as in his judgment may be necessary.” Id. § 264(a). The government asserts that a
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`nationwide eviction moratorium is among the “other measures” for disease control that Congress
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`envisioned when drafting the statute.
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`3When reviewing an agency’s construction of a statute it administers, we generally apply the two-step
`Chevron framework that requires us (1) to determine whether the statute is unambiguous, and (2) if so, to defer to
`the agency’s construction if it is permissible. Chevron, U.S.A., Inc. v. NRDC, Inc., 467 U.S. 837, 842–43 (1984);
`Arangure v. Whitaker, 911 F.3d 333, 338 (6th Cir. 2018). Where the statute is unambiguous, then “that is the end
`of the matter”: the court applies it as written. Id. (quoting City of Arlington v. FCC, 569 U.S. 290, 296 (2013)). In
`the briefing before us, neither party has argued that Chevron applies. Whether or not it applies, we find that the
`statute is unambiguous; therefore, we need not proceed beyond step one in any event.
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 5
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`We disagree. This kind of catchall provision at the end of a list of specific items warrants
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`application of the ejusdem generis canon, which says that “where general words follow specific
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`words in a statutory enumeration, the general words are construed to embrace only objects
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`similar in nature to those objects enumerated by the preceding specific words.” Circuit City
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`Stores, Inc. v. Adams, 532 U.S. 105, 114–15 (2001) (citation omitted). The residual phrase in §
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`264(a) is “controlled and defined by reference to the enumerated categories . . . before it,” id. at
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`115, such that the “other measures” envisioned in the statute are measures like “inspection,
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`fumigation, disinfection, sanitation, pest extermination” and so on, 42 U.S.C. § 264(a). Plainly,
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`government intrusion on property to sanitize and dispose of infected matter is different in nature
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`from a moratorium on evictions. See Terkel v. CDC, No. 6:20-cv-00564, 2021 WL 742877, at
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`*6 (E.D. Tex. Feb. 25, 2021) (holding that the Halt Order exceeded the scope of the CDC’s
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`authority and observing that “eviction is fundamentally the vindication of the property owner’s
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`possessory interest”). The Halt Order thus falls outside the scope of the statute.
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`Furthermore, even if we were inclined to construe the phrase “other measures” as
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`expansively as the government suggests, we cannot read the Public Health Service Act to grant
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`the CDC the power to insert itself into the landlord-tenant relationship without some clear,
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`unequivocal textual evidence of Congress’s intent to do so. Regulation of the landlord-tenant
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`relationship is historically the province of the states. Loretto v. Teleprompter Manhattan CATV
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`Corp., 458 U.S. 419, 440 (1982) (“This Court has consistently affirmed that States have broad
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`power to regulate housing conditions in general and the landlord-tenant relationship in
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`particular.”). It is an “ordinary rule of statutory construction that if Congress intends to alter the
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`usual constitutional balance between the States and the Federal Government, it must make its
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`intention to do so unmistakably clear in the language of the statute.” Will v. Mich. Dep’t of State
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`Police, 491 U.S. 58, 65 (1989) (quotation marks and citation omitted); Solid Waste Agency v.
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`U.S. Army Corps of Eng’rs, 531 U.S. 159, 172–73 (2001) (declining to defer to agency
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`interpretation of a statute where the interpretation pushed the limits of Congress’s Commerce
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`Clause authority “by permitting federal encroachment upon a traditional state power”). There is
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`no “unmistakably clear” language in the Public Health Service Act indicating Congress’s intent
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`to invade the traditionally State-operated arena of landlord-tenant relations.
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 6
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`As the district court noted, the broad construction of § 264 the government proposes
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`raises not only concerns about federalism, but also concerns about the delegation of legislative
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`power to the executive branch. The government would have us construe the phrase “and other
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`measures, as in his judgment may be necessary,” 42 U.S.C. § 264, as a “broad grant of authority”
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`to impose any number of regulatory actions, provided the Secretary believes those actions will
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`help prevent the spread of disease, regardless of whether they are in any way tethered to the
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`“specific intrusions on private property described in the second sentence” of § 264. “In the
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`absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to
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`give the Secretary the unprecedented power” of that kind. Indus. Union Dep’t, AFL-CIO v. API,
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`448 U.S. 607, 645 (1980) (plurality opinion). We will not make such an unreasonable
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`assumption.
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`The government raises two textual counterarguments, neither of which has merit. Its first
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`requires some unpacking. The government argues primarily that (i) a later subsection of § 264
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`acknowledges the Secretary’s authority to enforce quarantines, (ii) quarantines are not among the
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`enumerated provisions of § 264(a), (iii) quarantines are different in kind from the enumerated
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`provisions, and therefore, (iv) “other measures” must be read more expansively than the ejusdem
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`generis canon allows. The argument has cosmetic appeal, but it does not withstand scrutiny.
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`Those later subsections concern the government’s limited power to restrict liberty interests—by
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`means of enforced quarantine—in order to prevent the spread of disease. Section 264(a) is
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`concerned exclusively with restrictions on property interests and is, therefore, structurally
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`separate from the statute’s quarantine provision. Prohibiting landlords from evicting nonpaying
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`tenants unquestionably restricts a property interest, but an eviction moratorium is radically unlike
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`the property interest restrictions listed in § 264(a) (sanitizing, fumigating, etc.).
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`Second, the government contends that when Congress legislatively extended the Halt
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`Order to January 31 through the Consolidated Appropriations Act, it effectively acknowledged
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`that § 264(a) authorized the Halt Order in the first place. That argument also fails. It is true that
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`when Congress legislatively extended the Halt Order, it referenced the fact that the CDC claimed
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`42 U.S.C. § 264(a) as its authority for issuing the order in the first place. H.R. 133, 116th Cong.,
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`div. N, tit. V, § 502. However, mere congressional acquiescence in the CDC’s assertion that the
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`No. 21-5256
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`Tiger Lily, LLC, et al. v. HUD, et al.
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`Page 7
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`Halt Order was supported by 42 U.S.C. § 264(a) does not make it so, especially given that the
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`plain text of that provision indicates otherwise. We acknowledge that Congress has “the power
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`to ratify . . . acts which it might have authorized and give the force of law to official action
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`unauthorized when taken.” Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301-02 (1937)
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`(internal citation omitted). But nothing in § 502 expressly approved the agency’s interpretation.
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`All § 502 did was congressionally extend the agency’s action until January 31, 2021. H.R. 133,
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`116th Cong., div. N, tit. V, § 502. After that date, Congress withdrew its support, and the CDC
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`could rely only on the plain text of 42 U.S.C. § 264, which, as noted, does not authorize the CDC
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`Director to ban evictions.
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`Given that the government is unlikely to succeed on the merits, we need not consider the
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`remaining stay factors. See Maryville Baptist Church, Inc. v. Beshear, 957 F.3d 610, 615–16
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`(6th Cir. 2020); Mich. Coal. of Radioactive Material Users, Inc. v. Griepentrog, 945 F.2d 150,
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`153–54 (6th Cir. 1991) (“[E]ven if a movant demonstrates irreparable harm that decidedly
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`outweighs any potential harm to the [Plaintiffs] if a stay is granted, [it] is still required to show,
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`at a minimum, serious questions going to the merits”).
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`The emergency motion for a stay pending appeal is denied.
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`ENTERED BY ORDER OF THE COURT
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`____________________________________
`Deborah S. Hunt, Clerk
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