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Owen v. City of Portland

United States District Court, D. Oregon

February 15, 2017


          John A. DiLorenzo, Jr. and P. Andrew McStay, Jr., Davis Wright Tremaine LLP, 1300 S.W. Fifth Avenue, Suite 2400, Portland, OR 97201. Of Attorneys for Plaintiffs.

          Tracey Reeve, City Attorney; Harry Auerbach, Chief Deputy City Attorney; Denis M. Vannier, Deputy City Attorney, and Rebeca Plaza, Deputy City Attorney; OFFICE OF THE CITY ATTORNEY, 1221 S.W. Fourth Avenue, Room 430, Portland, OR 97204. Of Attorneys for Defendant.

          Becky Straus, Marisa Samuelson, and Monica Goracke, Oregon Law Center, 522 S.W. Fifth Avenue, Suite 812, Portland, OR 97204; Andrea Ogston and Julia Olsen, LEGAL Aid SERVICES OF Oregon, 520 S.W. Sixth Avenue, Suite 700, Portland, OR 97204. Of Attorneys for Amicus Curiae Coya Crespin, Scott Carroll, and Yesica Sanchez.


          Michael H. Simon United States District Judge

         Michael H. Simon, District Judge.

         On February 2, 2017, the Portland City Council ("City Council") unanimously adopted Ordinance No. 188219 ("Ordinance"). The Ordinance amends Portland City Code ("PCC") § 30.01.085 (Portland Renter Additional Protections) to add a temporary requirement for the provision of relocation assistance to involuntarily displaced residential tenants during the current Portland housing emergency. In adopting the Ordinance, the City Council declared that an emergency exists, sufficient to prevent delays in implementing the Ordinance. Thus, the Ordinance became effective immediately upon adoption. The Ordinance provides that its substantive provisions shall remain in effect during the duration of the housing emergency, which was first declared by the City Council on October 7, 2015, and extended in the Ordinance through October 6, 2017.

         Plaintiffs are landlords who own and manage a mix of multi-family and single-family dwellings in Portland. On February 6, 2017, Plaintiffs sued the City of Portland ("City") in state court, seeking declaratory and injunctive relief based on a variety of legal claims, including alleged violations of the United States Constitution. Invoking federal question jurisdiction, the City removed the lawsuit to federal court on February 9, 2017. The next day, February 10, 2017, Plaintiffs moved for a temporary restraining order, seeking to enjoin the City from allowing the Ordinance "to take effect." After receiving legal memoranda from all parties, the Court held a hearing on February 15, 2017. Based on the arguments of the parties and the evidence submitted, the Court issues this decision.


         In deciding whether to grant a motion for temporary restraining order ("TRO"), courts look to substantially the same factors that apply to a court's decision on whether to issue a preliminary injunction. See Stuhlbarg Int'l Sales Co. v. John D. Brushy & Co., 240 F.3d 832, 839 n.7 (9th Cir. 2001). A preliminary injunction is an "extraordinary remedy that may only be awarded upon a clear showing that the plaintiff is entitled to such relief." Winter v. Natural Res. Def. Council, 555 U.S. 7, 22 (2008). A plaintiff seeking a preliminary injunction generally must show that: (1) the plaintiff is likely to succeed on the merits; (2) the plaintiff is likely to suffer irreparable harm in the absence of preliminary relief; (3) the balance of equities tips in favor of the plaintiff; and (4) an injunction is in the public interest. Winter, 555 U.S. at 20 (rejecting the Ninth Circuit's earlier rule that the mere "possibility" of irreparable harm, as opposed to its likelihood, was sufficient, in some circumstances, to justify a preliminary injunction).

         The Supreme Court's decision in Winter, however, did not disturb the Ninth Circuit's alternative "serious questions" test. Alliance for the Wild Rockies v. Cottrell, 632 F.3d 1127, 1131-32 (9th Cir. 2011). Under this test, '"serious questions going to the merits' and a hardship balance that tips sharply toward the plaintiff can support issuance of an injunction, assuming the other two elements of the Winter test are also met." Id. at 1132. Thus, a preliminary injunction may be granted "if there is a likelihood of irreparable injury to plaintiff; there are serious questions going to the merits; the balance of hardships tips sharply in favor of the plaintiff; and the injunction is in the public interest." M.R. v. Dreyfus, 697 F.3d 706, 725 (9th Cir. 2012) (citing Cottrell).

         Finally, a TRO is necessarily of a shorter and more limited duration than a preliminary injunction.[1] Thus, the application of the relevant factors may differ, depending on whether the court is considering a TRO or a preliminary injunction.[2] Indeed, the two factors most likely to be affected by whether the motion at issue is for a TRO or a preliminary injunction are the "balancing of the equities among the parties" and "the public interest."


         A. The Ordinance

         In the Ordinance, the City Council made certain findings of fact, including the following:

• This is the fourth consecutive year that Portland has seen an annual rent increase in excess of five percent, with the average rent increasing nearly 30 percent since 2012.
• Significant increases in rent raise serious concerns over potential involuntary economic displacement.
• Due to the severe shortage of rental housing and shelter space arising from human-made events and circumstances, the Portland City Council declared a housing emergency on October 7, 2015, which the Ordinance extends until October 6, 2017.
• At least 45 percent of the population of Portland are tenants.
• More than 52 percent of tenants in Portland are considered "cost-burdened, " meaning that they pay more than 30 percent of their gross monthly income on rent.
• The average Portland tenant pays between 45 percent and 49 percent of his or her income on rent, which puts that tenant at significant risk of becoming "severely cost-burdened" (i.e., paying more than 50 percent of gross monthly income on rent).
• Rent increases of 10 percent or more have the effect of constructively evicting tenants, resulting in involuntary displacement.
• Involuntary displacement also occurs due to "no cause" evictions.
• Involuntary displacements have contributed to a significant ...

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