Tiger Lily, LLC v. U.S. Dep't of Hous. & Urban Dev.

• Decision Date: 29 March 2021
• Docket Number: No. 21-5256,21-5256
• Citation: 992 F.3d 518
• Parties: TIGER LILY, LLC, et al., Plaintiff-Appellees, v. UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants-Appellants.
• Court: U.S. Court of Appeals — Sixth Circuit

992 F.3d 518

TIGER LILY, LLC, et al., Plaintiff-Appellees,

v.UNITED STATES DEPARTMENT OF HOUSING AND URBAN DEVELOPMENT, et al., Defendants-Appellants.

No. 21-5256

United States Court of Appeals, Sixth Circuit.

Decided and Filed: March 29, 2021

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.

Before: NORRIS, THAPAR, and BUSH, Circuit Judges.

ORDER

Last September, the Centers for Disease Control and Prevention ordered a nationwide moratorium on residential evictions. As justification for its involvement in landlord-tenant relations, the CDC cited a provision of the Public Health Service Act authorizing it to sanitize property exposed to contagion. Plaintiffs in this case—all of whom own or manage residential rental properties—challenged the CDC's order and its subsequent extension. The district court entered judgment in favor of Plaintiffs. The government now moves to stay the district court's order pending appeal. We deny its motion.

I

In March 2020, Congress responded to the wide-ranging economic effects of the COVID-19 pandemic by passing the CARES Act. See Pub. L. No. 116-136, 134 Stat. 281 (2020). Among other economic relief provisions, the Act included a 120-day moratorium on eviction filings based on nonpayment of rent for tenants residing in certain federally financed rental properties. Id. § 4024(b). That moratorium expired on July 25, 2020.

After the congressionally authorized moratorium expired, the CDC Director unilaterally issued an order declaring a new moratorium, halting evictions of certain "covered persons" through December 31, 2020. 85 Fed. Reg. 55292-01. The CDC purported to find statutory authority for the Halt Order in Section 361 of the Public Health Service Act, codified at 42 U.S.C. § 264. Id. That section provides the Secretary of Health and Human Services with the power to "make and enforce such regulations as in his judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases." 42 U.S.C. § 264(a).¹ To carry out and enforce those regulations, the statute authorizes the Secretary to provide for "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 statute also grants the Secretary authority to make and enforce regulations for quarantining infected persons. Id. § 264(b–d). The Secretary has delegated its powers under § 264 to the CDC by regulation. See 42 C.F.R. § 70.2.

Shortly after the CDC issued the Halt Order, Congress passed the Consolidated Appropriations Act, which extended the Halt Order from December 31 to January 31. Pub. L. No. 116-260, § 502, 134 Stat. 1182 (2020).

On January 29, 2021, just before that statutory extension lapsed, the CDC Director issued a new directive extending the order through March 31, 2021. 86 Fed. Reg. 8020-01. She again relied only on the generic rulemaking power arising from the Public Health Service Act. Id. (citing 42 U.S.C. § 264(a) ).

In September 2020, Plaintiffs filed suit against the government seeking, as relevant here, a declaratory judgment that the Halt Order violated the Administrative Procedures Act and a preliminary injunction barring its enforcement. The district court denied the preliminary injunction because it found that Plaintiffs’ loss of income did not rise to the level of an irreparable injury. The government then moved for judgment on the pleadings. Plaintiffs countered with a Rule 56 motion for judgment on the administrative record. The district court granted judgment in Plaintiffs’ favor, finding that the Halt Order exceeded the CDC's statutory authority under 42 U.S.C. § 264(a).

The day after the district court entered judgment, the government filed its appeal and moved the district court for an emergency stay and immediate administrative stay. Plaintiffs notified the district court that they intended to take two weeks to respond, and the district court did not order otherwise. The government then filed the stay motion now before us.²

II

We consider four factors when deciding whether to stay a judgment pending appeal: "(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." Nken v. Holder , 556 U.S. 418, 434, 129 S.Ct. 1749, 173 L.Ed.2d 550 (2009) (quotation and brackets omitted). When a party has no likelihood of success on the merits, we may not grant a stay. SawariMedia, LLC v. Whitmer , 963 F.3d 595, 596 (6th Cir. 2020) (quoting Daunt v. Benson , 956 F.3d 396, 421–22 (6th Cir. 2020) ).

Whether the government is likely to succeed on the merits boils down to a simple question: did Congress grant the CDC the power it claims? We address that question of statutory interpretation de novo. See Smith v. Thomas , 911 F.3d 378, 381 (6th Cir. 2018).³ When analyzing the statute, "we look first to its language, giving the words used their ordinary meaning." Artis v. District of Columbia , ––– U.S. ––––, 138 S. Ct. 594, 603, 199 L.Ed.2d 473 (2018) (citation and internal quotation marks omitted). We then apply "established principles of interpretation." POM Wonderful LLC v. Coca-Cola Co. , 573 U.S. 102, 134 S. Ct. 2228, 2236, 189 L.Ed.2d 141 (2014). If, after those steps, the statute's meaning is clear, our task is done. See BedRoc Ltd. v. United States , 541 U.S. 176, 183, 124 S.Ct. 1587, 158 L.Ed.2d 338 (2004).

Because Congress's express authorization of the Halt Order expired on January 31, the CDC points to 42 U.S.C. § 264 as the sole statutory basis for the order's extension. But the terms of that statute cannot support the broad power that the CDC seeks to exert.

To slow disease transmission, the HHS Secretary, and the CDC by extension, can impose specific restrictions on both property interests, see 42 U.S.C. § 264(a), and liberty interests, see id. § 264(d). As to the former, 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." Id. § 264(a). The government asserts that a nationwide eviction moratorium is among the "other measures" for disease control that Congress envisioned when drafting the statute.

We disagree. This kind of catchall provision at the end of a list of specific items warrants application of the ejusdem generis canon, which says that "where general words follow specific words in a statutory enumeration, the general words are construed to embrace only objects similar in nature to those objects enumerated by the preceding specific words." Circuit City Stores, Inc. v. Adams , 532 U.S. 105, 114–15, 121 S.Ct. 1302, 149 L.Ed.2d 234 (2001) (citation omitted). The residual phrase in § 264(a) is "controlled and defined by reference to the enumerated categories ... before it," id. at 115, 121 S.Ct. 1302, such that the "other measures" envisioned in the statute are measures like "inspection, fumigation, disinfection, sanitation, pest extermination" and so on, 42 U.S.C. § 264(a). Plainly, government intrusion on property to sanitize and dispose of infected matter is different in nature from a moratorium on evictions. See Terkel v. CDC , No. 6:20-cv-00564, ––– F.Supp.3d ––––, ––––, 2021 WL 742877, at *6 (E.D. Tex. Feb. 25, 2021) (holding that the Halt Order exceeded the scope of the CDC's authority and observing that "eviction is fundamentally the vindication of the property owner's possessory interest"). The Halt Order thus falls outside the scope of the statute.

Furthermore, even if we were inclined to construe the phrase "other measures" as expansively as the government suggests, we cannot read the Public Health Service Act to grant the CDC the power to insert itself into the landlord-tenant relationship without some clear, unequivocal textual evidence of Congress's intent to do so. Regulation of the landlord-tenant relationship is historically the province of the states. Loretto v. Teleprompter Manhattan CATV Corp. , 458 U.S. 419, 440, 102 S.Ct. 3164, 73 L.Ed.2d 868 (1982) ("This Court has consistently affirmed that States have broad power to regulate housing conditions in general and the landlord-tenant relationship in particular."). It is an "ordinary rule of statutory construction that if Congress intends to alter the usual constitutional balance between the States and the Federal Government, it must make its intention to do so unmistakably clear in the language of the statute." Will v. Mich. Dep't of State Police , 491 U.S. 58, 65, 109 S.Ct. 2304, 105 L.Ed.2d 45 (1989) (quotation marks and citation omitted); Solid Waste Agency v. U.S. Army Corps of Eng'rs , 531 U.S. 159, 172–73, 121 S.Ct. 675, 148 L.Ed.2d 576 (2001) (declining to defer to agency interpretation of a statute where the interpretation pushed the limits of Congress's Commerce Clause authority "by permitting federal encroachment upon a traditional state power"). There is no "unmistakably clear" language in the Public Health Service Act indicating Congress's intent to invade the traditionally State-operated arena of landlord-tenant relations.

As the district court noted, the broad construction of § 264 the government proposes raises not only concerns about federalism, but also concerns about the delegation of legislative power to the executive branch. The government would have us construe the phrase "and other measures, as in his...