Brown v. Azar

• Decision Date: 29 October 2020
• Docket Number: CIVIL ACTION NO. 1:20-CV-03702-JPB
• Citation: 497 F.Supp.3d 1270
• Parties: Richard Lee BROWN, et al., Plaintiffs, v. Alex AZAR, in his official capacity as Secretary, U.S. Department of Health & Human Services, et al., Defendants.
• Court: U.S. District Court — Northern District of Georgia

497 F.Supp.3d 1270

Richard Lee BROWN, et al., Plaintiffs,

v.Alex AZAR, in his official capacity as Secretary, U.S. Department of Health & Human Services, et al., Defendants.

CIVIL ACTION NO. 1:20-CV-03702-JPB

United States District Court, N.D. Georgia, Atlanta Division.

Signed October 29, 2020

Caleb Kruckenberg, Pro Hac Vice, New Civil Liberties Alliance, Washington, DC, James W. Hawkins, James W. Hawkins, LLC, Cumming, GA, for Plaintiffs.

Leslie Cooper Vigen, DOJ-CIV, Steven A. Myers, United States Department of Justice, Washington, DC, for Defendants.

ORDER

J. P. BOULEE, United States District Judge

This matter is before the Court on Richard Lee Brown, Jeffrey Rondeau, David Krausz, Sonya Jones and the National Apartment Association's ("NAA") (collectively, "Plaintiffs") Motion for Preliminary Injunction. [Doc. 18]. This Court finds as follows:

FACTS AND PROCEDURAL HISTORY

"It would be a colossal understatement to say that the COVID-19 pandemic has had far-reaching effects. It has changed everything from the way that friends and families interact to the way that businesses and schools operate to the way that courts hear and decide cases." Swain v. Junior, 961 F.3d 1276, 1280 (11th Cir. 2020). As a result of the pandemic, "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 (Sept. 4, 2020). This case involves one of those measures—eviction moratoria for certain qualifying individuals.

On September 4, 2020, the Centers for Disease Control and Prevention ("CDC"), a division of the Department of Health and Human Services ("HHS"), implemented a temporary eviction moratorium to prevent the further spread of COVID-19 (the "Order"). Id. While the Order is in place (September 4, 2020, through December 31, 2020, unless extended, modified or rescinded), landlords are prohibited from evicting a covered person from a residential property for the non-payment of rent. Id. at 55,292, 55,297. To qualify as a covered person, the individual tenant must provide a declaration to their landlord under penalty of perjury indicating that: (1) "[t]he individual has used best efforts to obtain all available government assistance for rent or housing"; (2) the individual satisfies certain income requirements; (3) "the individual is unable to pay the full rent or make a full housing payment 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) "the individual is using best efforts to make timely partial payments that are as close to the full payment as the individual's circumstances may permit, taking into account other nondiscretionary expenses"; and (5) "eviction would likely render the individual homeless—or force the individual to move into and live in close quarters in a new congregate or shared living setting—because the individual has no other available housing options." Id. at 55,293.

While the Order temporarily prohibits evictions of covered persons, the Order makes clear that it "does not relieve any individual of any obligation to pay rent, make a housing payment, or comply with any other obligation that the individual may have under a tenancy, lease, or similar contract." Id. at 55,294. The Order explicitly provides that the landlord is not precluded from charging or collecting fees, penalties or interest as a result of the failure to pay rent on a timely basis. Id. Moreover, nothing in the Order prevents evictions based on the tenant:

(1) [e]ngaging in criminal activity while on the premises; (2) threatening the health or safety of other residents; (3) damaging or posing an immediate and significant risk of damage to property; (4) violating any applicable building code, health ordinance or other similar regulation relating to health and safety; or (5) violating any other contractual obligation, other than the timely payment of rent or similar housing-related payment.

Id.

Except for Plaintiff NAA,¹ Plaintiffs are landlords seeking to evict their tenants for the non-payment of rent. Each of the individual plaintiffs supplied affidavits in support of the Motion for Preliminary Injunction. [Docs. 18-2, 18-3, 18-4 and 18-5]. Plaintiff Brown, according to his affidavit, owns a rental property in Virginia and is currently leasing it to a tenant for $925.00 per month. [Doc. 18-2, pp. 1-2]. Plaintiff Brown asserts that his tenant has not made payments for the past several months, and that if he initiates eviction proceedings against her, she will provide a declaration indicating that she is a covered person under the Order. Id. at 2-3. Plaintiff Brown concludes his affidavit by stating that his tenant is insolvent, and he will not be able to obtain any economic relief or damages from her. Id. at 3.

Similarly, Plaintiff Rondeau owns a rental property in Vale, North Carolina. [Doc. 18-3, p. 1]. Plaintiff Rondeau's property is currently leased to a tenant at a rate of $1,000.00 per month. Id. When Plaintiff Rondeau's tenant fell behind on her rental payments, Plaintiff Rondeau secured a writ of possession, and the Sheriff's Department scheduled the eviction for September 21, 2020. Id. The eviction, however, did not proceed because the tenant provided Plaintiff Rondeau with a declaration indicating that she is a covered person under the Order. Id. at 1-2. Like Plaintiff Brown, Plaintiff Rondeau concludes his affidavit by stating that the tenant is insolvent, and he will not be able to obtain any economic relief or damages from her. Id. at 2.

Plaintiff Krausz owns a rental property in Columbia, South Carolina, and is currently leasing the property to a tenant for a monthly rent of $700.00. [Doc. 18-4, p. 1]. When Plaintiff Krausz’ tenant failed to comply with the terms of a consent agreement regarding past due rent, Plaintiff Krausz obtained a writ of possession and scheduled the eviction for September 21, 2020. Id. at 2. Before the eviction could be executed, Plaintiff Krausz’ tenant provided him with a declaration indicating that she is a covered person under the Order. Id. at 2-3. As a result, the eviction did not proceed as scheduled. Id. Plaintiff Krausz asserts that the tenant appears to be insolvent and that he will likely be unable to obtain any economic relief or damages from her. Id. at 3.

Plaintiff Jones owns a rental property in Georgia. [Doc. 18-5, p. 1]. On August 24, 2020, Plaintiff Jones began the eviction process by serving her tenant with a dispossessory affidavit. Id. At the hearing to determine whether the tenant would be evicted, which was held on September 8, 2020, Plaintiff Jones’ tenant represented to the court that his failure to pay rent was related to the COVID-19 pandemic. Id. Even though Plaintiff Jones’ tenant did not submit a declaration that would comply with the Order or show that he is a covered person, the dispossessory court continued all proceedings until January 2021. Id. Plaintiff Jones concludes that her tenant is insolvent and that she will not be able to obtain any economic relief or damages from him. Id. at 2.

On September 8, 2020, Plaintiff Brown brought this action against Alex Azar, in his official capacity as Secretary of HHS, HHS, Nina B. Witkofsky, in her official capacity as acting chief of staff for the CDC, and the CDC (collectively, "Defendants") seeking to invalidate the Order.

[Doc. 1]. Thereafter, on September 18, 2020, an Amended Complaint was filed adding the other plaintiffs. [Doc. 12]. The instant Motion for Preliminary Injunction was also filed on September 18, 2020. [Doc. 18]. In their Motion for Preliminary Injunction, Plaintiffs ask this Court to enter an order prohibiting Defendants from enforcing the Order. Id. at 10. Briefing on the motion closed on October 16, 2020,² and oral argument was heard by video conference on October 20, 2020. Plaintiffs’ motion is ripe for review.

ANALYSIS

A plaintiff seeking preliminary injunctive relief must show the following:

(1) a substantial likelihood that he will ultimately prevail on the merits; (2) that he will suffer irreparable injury unless the injunction issues; (3) that the threatened injury to the movant outweighs whatever damage the proposed injunction may cause to the opposing party; and (4) that the injunction, if issued, would not be adverse to the public interest.

Sofarelli v. Pinellas Cnty., 931 F.2d 718, 723-24 (11th Cir. 1991) (citation omitted). "[A] preliminary injunction is an extraordinary and drastic remedy not to be granted unless the movant clearly establish[es] the ‘burden of persuasion’ as to each of the four prerequisites." Siegel v. LePore, 234 F.3d 1163, 1176 (11th Cir. 2000) (citation omitted). Granting a preliminary injunction is the exception rather than the rule. Id.

As a preliminary matter, Defendants challenge Plaintiffs’ standing to bring the suit. They also argue that the action cannot proceed because Plaintiffs failed to join indispensable parties. The Court will first address the standing and joinder issues before turning to an analysis of the four preliminary injunction prerequisites.

I. Preliminary Issues

A. Plaintiffs’ Standing

This Court must first answer the threshold question of whether Plaintiffs have standing. Litigants must have standing to properly invoke the jurisdiction of the federal courts. Lujan v. Defenders of Wildlife, 504 U.S. 555, 560, 112 S.Ct. 2130, 119 L.Ed.2d 351 (1992). "In the absence of standing, a court is not free to opine in an advisory capacity about the merits of a plaintiff's claims, and the court is powerless to continue." Hollywood Mobile Estates Ltd. v. Seminole Tribe, 641 F.3d 1259, 1265 (11th Cir. 2011) (citation omitted). The standing doctrine requires a plaintiff to show that he: (1) suffered an injury-in-fact; ...