Friday, August 13, 2021

District Judge Leaves CDC's Eviction Moratorium in Place

Judge Dabney Friedrich (D.D.C.) declined to halt the CDC's eviction moratorium in light of an earlier ruling by the D.C. Circuit. The court said that it's "hands are tied," even though "intervening decisions call into question the D.C. Circuit's conclusion that the CDC is likely to succeed on the merits." The court then invited the plaintiffs to appeal, which they certainly will.

The case, Alabama Association of Realtors v. US DHS, challenges the latest version of the CDC's eviction moratorium. Plaintiffs previously challenged an earlier version (which applied nationwide) on the ground that the CDC lacked statutory authority under the Public Health Act. The court vacated the earlier version last May, but stayed the vacatur pending appeal. The D.C. Circuit declined to vacate stay in June. The Supreme Court also declined to vacate the stay, based at least in part on the CDC's representation that it wouldn't further extend the moratorium. (Four justices would've ruled for the plaintiffs outright; a fifth, Justice Kavanaugh, wrote that the CDC needed statutory authority, but he nevertheless voted to keep the stay in place because it was set to expire in just a couple weeks.)

Then the CDC extended the moratorium, but only as to counties with a substantial or high level of community transmission of COVID.

The plaintiffs then went back to the district court and asked it to "enforce the Supreme Court's ruling." Today the district court declined.

The court said that it was bound by the June D.C. Circuit ruling--the "law of the case"--and that nothing in the Supreme Court's ruling undid the D.C. Circuit's ruling. The court noted that "the Sixth Circuit held that Section 361 of the Public Health Act does not authorize the CDC to impose a nationwide eviction moratorium," and that the Eleventh Circuit "also expressed 'doubts' about the CDC's statutory arguments. But it said that these rulings aren't binding; instead, the D.C. Circuit is.

https://lawprofessors.typepad.com/conlaw/2021/08/district-judge-leaves-cdcs-eviction-moratorium-in-place.html

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