Brown v. Sec'y, U.S. Dep't of Health & Human Servs., 20-14210

• Court: United States Courts of Appeals. United States Court of Appeals (11th Circuit)
• Writing for the Court: GRANT, Circuit Judge
• Citation: 4 F.4th 1220
• Parties: Richard Lee BROWN, Jeffrey Rondeau, David Krausz, Sonya Jones, National Apartment Association, Plaintiffs-Appellants, v. SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Department of Health and Human Services, Chief of Staff, U.S. Centers for Disease Control and Prevention, U.S. Centers for Disease Control and Prevention, Defendants-Appellees.
• Docket Number: No. 20-14210,20-14210
• Decision Date: 14 July 2021

4 F.4th 1220

Richard Lee BROWN, Jeffrey Rondeau, David Krausz, Sonya Jones, National Apartment Association, Plaintiffs-Appellants,
v.
SECRETARY, U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, U.S. Department of Health and Human Services, Chief of Staff, U.S. Centers for Disease Control and Prevention, U.S. Centers for Disease Control and Prevention, Defendants-Appellees.

No. 20-14210

United States Court of Appeals, Eleventh Circuit.

July 14, 2021

Caleb Kruckenberg, Kara McKenna Rollins, New Civil Liberties Alliance, Washington, DC, James W. Hawkins, Ichter Davis, LLC, Atlanta, GA, for Plaintiffs-Appellants.

Alisa Beth Klein, U.S. Attorney General's Office, Brian James Springer, Leslie Cooper Vigen, U.S. Department of Justice, Washington, DC, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Defendants-Appellees Secretary, Department of Health and Human Services, U.S. Centers for Disease Control and Prevention.

Brian James Springer, Leslie Cooper Vigen, U.S. Department of Justice, Washington, DC, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Defendant-Appellee U.S. Department of Health and Human Services.

Alisa Beth Klein, U.S. Attorney General's Office, Leslie Cooper Vigen, U.S. Department of Justice, Washington, DC, U.S. Attorney Service - Northern District of Georgia, U.S. Attorney's Office, Atlanta, GA, for Defendant-Appellee Chief of Staff, U.S. Centers for Disease Control and Prevention.

Before BRANCH, GRANT, and TJOFLAT, Circuit Judges.

GRANT, Circuit Judge:

When a district court denies a preliminary injunction, the plaintiffs have a choice: they can appeal the denial, or they can proceed with trying the case on the merits. If they choose to appeal, they often face an uphill battle. Rather than just persuade the judge on the merits, the plaintiffs must show that they are likely to suffer an irreparable injury without a preliminary injunction, that the balance of the equities tips in their favor, and that a preliminary injunction would not be adverse to the public interest. Because the plaintiffs here have failed to establish at least one of those requirements—irreparable injury—we affirm.

I.

In March 2020, Congress enacted the Coronavirus Aid, Relief, and Economic Security Act, Pub. L. No. 116-136, 134 Stat. 281 (2020). In the CARES Act, Congress, among other things, imposed a 120-day moratorium on evictions for rental properties receiving federal assistance. See 15 U.S.C. § 9058. After Congress's moratorium expired on July 25, 2020, the President directed the Secretary of the Department of Health and Human Services and the Director of the Centers for Disease Control and Prevention to "consider whether any measures temporarily halting residential evictions of any tenants for failure to pay rent are reasonably necessary" to prevent

4 F.4th 1223

the interstate spread of COVID-19. Fighting the Spread of COVID-19 by Providing Assistance to Renters and Homeowners, Exec. Order No. 13,945, 85 Fed. Reg. 49,935, 49,936 (Aug. 8, 2020).

To that end, the CDC issued a temporary eviction moratorium on September 4, 2020, that suspended the execution of eviction orders for nonpayment of rent. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. 55,292 (Sept. 4, 2020). The CDC pointed to 42 U.S.C. § 264 as providing a statutory basis for its order. That section grants the Surgeon General authority 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."¹ 42 U.S.C. § 264(a). And it states that, for "purposes of carrying out and enforcing such regulations, the Surgeon General 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." Id.

The CDC's order "does not relieve any individual of any obligation to pay rent," but it does prohibit any landlord from evicting "any covered person" from a residential property for nonpayment of rent while the order is in effect. Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed. Reg. at 55,292. To qualify as a "covered person" who can benefit from the eviction moratorium, a tenant must provide her landlord an "executed copy" of a declaration. Id. at 55,293. The declaration requires that the tenant attest to several provisions. First, that she has "used best efforts to obtain all available government assistance for rent or housing." Id. at 55,297. Second, that she meets one of several income qualifications, including that she expects to earn "no more than $99,000" in 2020 (or $198,000 if she files a joint tax return). Id. Third, that she is "unable to pay [her] full rent" due to "substantial loss of household income, loss of compensable hours of work or wages, lay-offs, or extraordinary out-of-pocket medical expenses." Id. (footnote omitted). Fourth, that she is "using best efforts to make timely partial payments," taking into account "other nondiscretionary expenses." Id. Fifth, she must attest that, if evicted, she "would likely become homeless, need to move into a homeless shelter, or need to move into a new residence shared by other people who live in close quarters because [she has] no other available housing options," which are defined as "available, unoccupied residential property" that would comply with occupancy standards and "not result in an overall increase of housing cost" for her. Id. Sixth, that she understands that she "must still pay rent or make a housing payment" and that "fees, penalties, or interest for not paying rent or making a housing payment on time" may still be charged. Id. And seventh, that she understands that when the eviction moratorium expires, her "housing provider may require payment in full for all payments not made prior to and during" the moratorium. Id.

The CDC's order was originally set to expire on December 31, 2020. Id. at 55,292. But days before the deadline, Congress enacted the Consolidated Appropriations

4 F.4th 1224

Act, which extended the CDC's order through January 31, 2021. See Pub. L. No. 116-260, § 502, 134 Stat. 1182, 2079 (2020). On January 29, the CDC extended the order again, this time 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). And as the March deadline approached, the CDC extended its order through June 30, 2021. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar. 31, 2021). Finally, on June 24, 2021, the CDC pushed the order's expiration date back yet again, this time until July 31, 2021. See Temporary Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 34,010 (June 28, 2021).

The plaintiffs here are several landlords seeking to evict their tenants for nonpayment of rent and a trade association for owners and managers of rental housing. In September 2020, they filed a complaint challenging the CDC's eviction moratorium. Their amended complaint alleges, among other things, that the CDC's order exceeds its statutory and regulatory authority, is arbitrary and capricious, and violates their constitutional right to access the courts. They then moved for a preliminary injunction, which the district court denied. This is their appeal.

II.

We review the district court's decision to deny a preliminary injunction for abuse of discretion, though "we review and correct errors of law without deference to the district court." Alabama v. U.S. Army Corps of Eng'rs , 424 F.3d 1117, 1129 (11th Cir. 2005).

III.

A preliminary injunction is an "extraordinary remedy never awarded as of right." Winter v. Nat. Res. Def. Council, Inc. , 555 U.S. 7, 24, 129 S.Ct. 365, 172 L.Ed.2d 249 (2008). Indeed, the grant of a preliminary injunction is "the exception rather than the rule." United States v. Lambert , 695 F.2d 536, 539 (11th Cir. 1983). To get one, a party must show: (1) a substantial likelihood of success on the merits; (2) a likelihood of suffering irreparable harm without a preliminary injunction; (3) that the threatened injury to the party outweighs any harm that might result to the defendants; and (4) that an injunction is not adverse to the public interest. See Ne. Fla. Chapter of Ass'n of Gen. Contractors of Am. v. City of Jacksonville , 896 F.2d 1283, 1284 (11th Cir. 1990) ; Winter , 555 U.S. at 20, 129 S.Ct. 365. The plaintiff bears the "burden of persuasion" on each of these four factors. Siegel v. LePore , 234 F.3d 1163, 1176 (11th Cir. 2000) (en banc) (quotation omitted). Because the government is the party opposing a preliminary injunction here, "its interest and harm merge with the public interest," so we may consider the third and fourth factors together. Swain v. Junior , 958 F.3d 1081, 1091 (11th Cir. 2020).

We have doubts about the district court's ruling on the first factor: whether the plaintiffs are likely to succeed on the merits. The only statutory basis...