United States District Court, D. Oregon
PHILLIP E. OWEN; OWEN PROPERTIES LLC; and MICHAEL L. FEVES, Plaintiffs,
CITY OF PORTLAND, Defendant.
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.
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.
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.
OPINION AND ORDER
Michael H. Simon United States District Judge
H. Simon, District Judge.
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.
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.
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).
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).
a TRO is necessarily of a shorter and more limited duration
than a preliminary injunction. Thus, the application of the
relevant factors may differ, depending on whether the court
is considering a TRO or a preliminary
injunction. 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
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
• 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
• Involuntary displacement also occurs due to "no
• Involuntary displacements have contributed to a