Appellate Circuit

No Evictions For Now: It’s A Big Ole Texas Hat Tip to DC Circuit Court of Appeals

Judge Friedrich made headlines for dating Kavanaugh. It just goes to show your appellate peers can see you’ve made another wrong choice.

Appeals court rejects bid by landlords to resume evictions

JUN 2, 2021 | REPUBLISHED BY LIT: JUN 3, 2021

A three-judge panel at the DC Circuit Court of Appeals comprising of Judges Millett, Pillard and Wilkins issued a seven-page per curiam order denying the motion to lift the administrative stay that a D.C. federal judge placed on her May 5 ruling against the nationwide moratorium, which she found exceeded the CDC’s statutory authority.

A federal appeals court in Washington, D.C., on Wednesday denied a request by a group of landlords to resume evictions, leaving the temporary nationwide eviction moratorium intact for now.

The ruling from the D.C. Circuit Court of Appeals is the latest twist in a multifront legal challenge to the eviction freeze that was enacted by federal public health officials as a way to keep financially distressed renters in their homes and out of crowded homeless shelters during the coronavirus pandemic.

The move follows a ruling last month by U.S. District Judge Dabney Friedrich, who struck down the Centers for Disease Control and Prevention’s (CDC) eviction moratorium after finding the agency had overstepped its authority. But Friedrich, a Trump appointee, agreed to block her ruling from taking immediate effect to allow time for the Biden administration to appeal.

This produced a mixed result for the challengers in the case, a group of landlords that includes the Alabama Association of Realtors and a number of co-plaintiffs.

The coalition of landlords then asked the D.C. Circuit Court of Appeals to lift Friedrich’s stay, which a three-judge panel on the appellate court denied Wednesday in an unsigned order. The court also said that the Department of Health and Human Services (HHS) had “made a strong showing that it is likely to succeed” in its appeal.

“HHS has demonstrated that lifting the national moratorium will exacerbate the significant public health risks identified by the CDC because, even with increased vaccinations, COVID-19 continues to spread and infect persons, and new variants are emerging,”

the court wrote.

Enacted in September as a public health measure, the CDC order was designed to mitigate the spread of the coronavirus by helping cash-strapped tenants avoid homeless shelters or other crowded living spaces.

The eviction pause was later extended through June.

Renters can demonstrate their eligibility for CDC eviction protections by signing a sworn declaration under penalty of perjury, attesting that they would face overcrowded conditions if evicted and certifying that they have made partial rent payments to the best of their ability.

A number of other judges across the country have ruled on the eviction ban’s lawfulness, with landlords holding a slight advantage in their win-loss record against the federal government.

Corporate landlords filed more than 56,000 eviction actions since the eviction pause took effect last September, with almost half of those filed this year, according to a study by the Private Equity Stakeholder Project of seven states.

Those notices, which don’t always lead to evictions, are being sent even as billions in rental assistance authorized by Congress continues to make its way from Washington to tenants in need of aid.

DC Circ. Keeps CDC Eviction Ban In Place During Appeal

JUN 2, 2021 | REPUBLISHED BY LIT: JUN 3, 2021

The D.C. Circuit on Wednesday denied a request from realtors and landlords to block the U.S. Centers for Disease Control and Prevention’s eviction moratorium during an appeal, keeping the ban in place and suggesting the government may well prevail in its defense.

A three-judge panel issued a seven-page per curiam order denying the motion to lift the administrative stay that a D.C. federal judge placed on her May 5 ruling against the nationwide moratorium, which she found exceeded the CDC’s statutory authority.

A three-judge panel said the judge was well within her authority to stay her own ruling. The panel said it would not lift that stay because the government has a good chance of winning its appeal.

“While of course not resolving the ultimate merits of the legal question, we conclude that [the government] has made a strong showing that it is likely to succeed on the merits,” the panel said. “Congress has expressly recognized that the agency had the authority to issue its narrowly crafted moratorium.”

The D.C. Circuit panel also said the realtors and property owners who brought the suit failed to demonstrate they were likely to suffer irreparable injury if the stay remained in place.

“The record does not demonstrate any likelihood that appellees themselves will lose their businesses, that an appreciable percentage of their own tenants who would otherwise pay in full will be unable to repay back rent, or that financial shortfalls are unlikely ultimately to be mitigated,” the panel said. “On top of that, the obligation to pay all rent due remains, and provision has been made to address the interim shortfalls.”

That “provision” likely refers to government funding for rental assistance, which was part of the $1.9 trillion pandemic relief package that became law in March.

Counsel for the parties did not immediately respond to requests for comment Wednesday.

Wednesday’s ruling suggests the D.C. Circuit is ready to overturn the May 5 decision by U.S. District Judge Dabney L. Friedrich to vacate the nationwide moratorium. The appeal does not have an oral argument scheduled.

In briefs leading up to the order, the realtors and landlords told the D.C. Circuit the unlawful “intrusion into the landlord-tenant relationship” should end as the nation makes progress on COVID-19, citing the CDC’s May 13 guidance that vaccinated people can safely go without masks in most situations.

“For the government to insist that despite this bright picture, public health concerns necessitate that landlords continue to provide free housing for tenants who have received vaccines (or passed up the chance to get them) is sheer doublespeak,” said the challengers, who are represented by Jones Day with the Alabama Association of Realtors as the lead plaintiff.

The government fired back that the argument was “baseless” because the updated guidance “does not change the basic facts underlying the CDC [eviction ban] order: COVID-19 spreads quickly and easily among unvaccinated individuals, and evictions exacerbate its spread.”

The eviction moratorium dates to the March 2020 CARES Act, which included a six-month ban that was succeeded by a CDC order in September. The CDC’s order was originally slated to expire in December, but Congress granted a temporary extension through the end of January. The agency later moved to extend the eviction moratorium through June 30, but without congressional approval.

Experts have told Law360 that district courts’ wide-ranging legal interpretations of the constitutional and statutory arguments brought against the ban are leaving state courts with inconsistent guidance on how to handle eviction cases. This has left the moratorium’s enforcement up to each individual judge’s discretion.

Judges Patricia A. Millett, Cornelia T.L. Pillard and Robert L. Wilkins sat on the panel for the D.C. Circuit.

The realtors and property owners are represented by Brett A. Shumate, Charlotte H. Taylor, Megan Lacy Owen and Stephen J. Kenny of Jones Day.

The government agencies are represented by Brian M. Boynton, Alisa B. Klein and Brian J. Springer of the U.S. Department of Justice’s Civil Division.

The case is Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al., case number 21-5093, in the U.S. Court of Appeals for the D.C. Circuit.

–Additional reporting by Khorri Atkinson, Grace Dixon and Nadia Dreid. Editing by Orlando Lorenzo.

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The Atrocious and Frivolous Emergency Application to the Supreme Court is Correctly Denied

…to Lift the Eviction Stay By Alabama Realtors Should be Denied with Sanctions. Do Not Sell Out the People Again for Greed SCOTUS.

No Evictions For Now: It’s A Big Ole Texas Hat Tip to DC Circuit Court of Appeals
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