Ala. Ass'n of Realtors v. U.S. Dep't of Health & Human Servs.

• Decision Date: 14 May 2021
• Docket Number: No. 20-cv-3377 (DLF),20-cv-3377 (DLF)
• Parties: ALABAMA ASSOCIATION OF REALTORS, et al., Plaintiffs, v. UNITED STATES DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al., Defendants.
• Court: U.S. District Court — District of Columbia

539 F.Supp.3d 211

ALABAMA ASSOCIATION OF REALTORS, et al., Plaintiffs,

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

No. 20-cv-3377 (DLF)

United States District Court, District of Columbia.

Signed May 14, 2021

Autumn Hamit Patterson, Pro Hac Vice, Jones Day, Dallas, TX, Charlotte Taylor, Megan Lacy Owen, Pro Hac Vice, Brett A. Shumate, Jones Day, Washington, DC, for Plaintiffs.

Leslie Cooper Vigen, Steven A. Myers, United States Department of Justice, Civil Division, Washington, DC, for Defendants.

MEMORANDUM OPINION

DABNEY L. FRIEDRICH, United States District Judge Before the Court is the Department of Health and Human Service's ("the Department") Emergency Motion for Stay Pending Appeal. Dkt. 57. Pursuant to Federal Rule of Civil Procedure 62(c), the Department seeks a stay of the Court's May 5, 2021 order vacating the nationwide eviction moratorium issued by the Centers for Disease Control and Prevention ("CDC"). See Dkt. 53. For the reasons that follow, the Court will grant the motion.

I. LEGAL STANDARD

A stay pending appeal is an "extraordinary remedy," Cuomo v. U.S. Nuclear Regul. Comm'n , 772 F.2d 972, 978 (D.C. Cir. 1985) (per curiam), as it "is an intrusion into the ordinary processes of administration and judicial review," Nken v. Holder , 556 U.S. 418, 427, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (internal quotation marks omitted). Accordingly, it "is not a matter of right." Id. (internal quotation marks omitted). "It is instead an exercise of judicial discretion" that "is dependent upon the circumstances of the particular case." Id. at 433, 129 S.Ct. 1749 (internal quotation marks omitted).

The moving party bears the burden of showing that this extraordinary remedy is warranted upon consideration of four factors: "(1) whether the stay applicant has made a strong showing that he is likely to succeed on the merits; (2) whether the applicant will be irreparably injured absent a stay; (3) whether issuance of the stay will substantially injure the other parties interested in the proceeding; and (4) where the public interest lies." Id. at 433–34, 129 S.Ct. 1749 (internal quotation marks omitted). The first two factors "are the most critical," id. at 434, 129 S.Ct. 1749, and when the government is a party, its "harm and the public interest are one and the same, because the government's interest is the public interest," Pursuing America's Greatness v. FEC , 831 F.3d 500, 511 (D.C. Cir. 2016) (emphasis in original); see Nken , 556 U.S. at 435, 129 S.Ct. 1749.

"The manner in which courts should weigh the four factors ‘remains an open question’ in this Circuit." Nora v. Wolf , No. 20-cv-0993, 2020 WL 3469670, at *6 (D.D.C. Jun. 25, 2020) (quoting Aamer v. Obama , 742 F.3d 1023, 1043 (D.C. Cir. 2014) ). At least in the context of weighing whether to grant a preliminary injunction, the D.C. Circuit has "suggested, without deciding," that Winter v. Natural Resources Defense Council , 555 U.S. 7, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008), could be read to require a plaintiff "to independently demonstrate both a likelihood of success on the merits and irreparable harm," Standing Rock Sioux Tribe v. U.S. Army Corps of Eng'rs , 205 F. Supp. 3d 4, 26 (D.D.C. 2016) (quoting Sherley v. Sebelius , 644 F.3d 388, 392–93 (D.C. Cir. 2011) ). But in the absence of clear guidance, courts in this Circuit have continued to analyze the factors "on a sliding scale whereby a strong showing on one factor could make up for a weaker showing on another." NAACP v. Trump , 321 F. Supp. 3d 143, 146 (D.D.C. 2018) (internal quotation marks omitted). Under this framework, a movant may make up for a lower likelihood of success on the merits "with a strong showing as to the other three factors, provided that the issue on appeal presents a ‘serious legal question’ on the merits." Cigar Ass'n of Am. v. FDA , 317 F. Supp. 3d 555, 560 (D.D.C. 2018) (quoting Wash. Metro. Area Transit Comm'n v. Holiday Tours, Inc. , 559 F.2d 841, 844 (D.C. Cir. 1977) ). Here, the Court will adopt the approach taken by other judges and "apply th[is] sliding scale approach" to determine whether the Department is entitled to a stay pending resolution of its appeal. See NAACP , 321 F. Supp. 3d at 146 (internal quotation marks omitted). To prevail under this standard, the Department "need only raise a serious legal question on the merits" if the "other factors strongly favor issuing a stay." Id. (internal quotation marks omitted).

II. ANALYSIS

A. Likelihood of Success

As to the first factor—the likelihood of success on the merits—"[i]t is not enough that the chance of success on the merits [is] better than negligible." Nken , 556 U.S. at 434, 129 S.Ct. 1749 (internal quotation marks omitted). Rather, it must be "substantial." Holiday Tours , 559 F.2d at 843.

Here, the Department has not shown a substantial likelihood of success on the merits. The Public Health Service Act provides, in relevant part:

The [CDC], with the approval of the Secretary, is authorized to make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession. For purposes of carrying out and enforcing such regulations, the [Secretary] may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary.

42 U.S.C. § 264(a).

The Department continues to argue that this statutory provision vests the Secretary with "broad authority to make and enforce" any regulations that "in his judgment are necessary to prevent the spread of disease," Defs.’ Mot. for Summ. J. at 11 (internal quotation marks omitted), Dkt. 26, and that the second sentence of § 264(a) imposes no limit on this "broad grant of authority," Defs.’ Emergency Mot. for Stay Pending Appeal ("Defs.’ Mot. to Stay") at 7–8.

The Court disagrees. Like other courts before it, this Court concluded in its May 5, 2021 Memorandum Opinion that the broad grant of rulemaking authority in the first sentence of § 264(a) is tethered to—and narrowed by—the second sentence, which enumerates various measures the Secretary "may provide for" to carry out and enforce regulations issued under § 264(a) : "inspection, fumigation, disinfection, sanitation, pest extermination, [and] destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings." 42 U.S.C. § 264(a) ; see Mem. Op. of May 5, 2021 at 11, Dkt. 54. The Department is correct that this list of measures is not exhaustive, as the Secretary may provide for "other measures, as in his judgment may be necessary." 42 U.S.C. § 264(a). But these "other measures" are "controlled and defined by reference to the enumerated categories before it." See Tiger Lily, LLC v. U.S. Dep't of Hous. & Urb. Dev. , 992 F.3d 518, 522–23 (6th Cir. 2021) (internal quotation marks and alteration omitted).

With that in mind, the statute could be read as requiring that the enumerated measures be directed toward "animals or articles," 42 U.S.C. § 264(a), that are "found to be so infected or contaminated as to be sources of dangerous infection to human beings," id. ; see Skyworks, Ltd. v. Ctrs. for Disease Control & Prevention , No. 5:20-cv-2407, 524 F.Supp.3d 745, 758–59 (N.D. Ohio Mar. 10, 2021) ; Mem. Op. of May 5, 2021 at 11–12. Alternatively, the statute could be interpreted to tie the limitations surrounding "animals or articles" solely to "destruction." 42 U.S.C. § 264(a). But even then, the enumerated measures—"inspection, fumigation, disinfection, sanitation, [and] pest extermination," id. —are "by their common meanings and understandings ... tied to specific, identifiable properties," Skyworks , 524 F.Supp.3d at 757. And under either reading, an eviction moratorium is "radically unlike" the measures enumerated in the statute. See Tiger Lily , 992 F.3d at 524 (interpreting 42 U.S.C. § 264(a) ). As this Court and others have noted, to read the enumerated measures in § 264(a) as imposing no limits on the Secretary's authority to "make and enforce regulations" would raise serious constitutional concerns. See Mem. Op. of May 5, 2021 at 14 (collecting cases).

The Department also contends it has a "substantial likelihood of success on appeal because Congress ratified the CDC Order in the 2021 Consolidated Appropriations Act." Defs.’ Mot. to Stay at 2. In § 502 of that Act, Congress provided:

The order issued by the Centers for Disease Control and Prevention under section 361 of the Public Health Service Act ( 42 U.S.C. 264 ), entitled " Temporary Halt in Residential Evictions To Prevent the Further Spread of COVID–19" (85 Fed. Reg. 55292 (September 4, 2020) is extended through January 31, 2021, notwithstanding the effective dates specified in such Order.

Pub. L. No. 116-260, § 502, 134 Stat. 1182, 2078–79 (2020).

It is true that Congress may "give the force of law to official action unauthorized when taken." Swayne & Hoyt v. United States , 300 U.S. 297, 301–02, 57 S.Ct. 478, 81 L.Ed. 659 (1937). But to ratify such action, Congress must make its intention clear. See United States v. Heinszen & Co. , 206 U.S. 370, 390, 27 S.Ct. 742, 51 L.Ed. 1098 (1907) ; see also Fund for Animals, Inc. v. U.S. Bureau of Land Mgmt. , 460 F.3d 13, 19 n.7 (D.C. Cir. 2006) (noting ratification may occur when there is a "clear statement of congressional approval") (internal citation omitted). While no "magic words are required," Defs.’ Reply in Supp. of Partial Mot. to Dismiss at 5, Dkt. 38, Congress must use "clear and unequivocal language," EEOC v. CBS, Inc. , 743 F.2d 969, 974 (2d Cir. 1984), to ratify "official action unauthorized when taken," Swayne & Hoyt , 300 U.S. at...