Alabama Association of Realtors, et al.  v. U.S. Department of Health and Human Services, No. 20A169.  Emergency application to Chief Justice of the United States Supreme Court and Circuit Justice for the D.C. Circuit John G. Roberts, Jr.  submitted June 2, 2021; Response submitted June 10, 2021. 


The Centers for Disease Control (CDC), following lapse of a federal legislative order, issued and later extended an order suspending landlords’ powers to evict non-paying tenants during the COVID-19 pandemic.  It was thought that a potential for massive evictions existed which would precipitate, among other things, homelessness or forced overcrowding of housing, which would increase the likelihood of viral contagion and disease. 

The CDC order will lapse on June 30th unless it is extended.

Tenants Stay While Landlords Pay. The eviction moratorium, as it is called, has relieved qualifying tenants of the obligation to pay rent.  Landlords have not been relieved of the obligation to pay bills.  

Various calculations present various estimates of the value of lost rental income during this time.  There is no doubt that it is, simply stated, a lot, but how much, in millions or billions, is disputed, as is the ability of a Congressional appropriation of funds payable to the states and, in turn, through the states and to the landlords, to mitigate their losses.  Landlords argue that if federal funds become available, the money will be insufficient to cover all losses and will be so delayed as to diminish the value of payment.

Not Merely a Civil Matter.  Lost rents are not landlords’ only worry.  Violations of the eviction moratorium carry criminal penalties and substantial fines. 

Defeat Snatched from the Jaws of Victory. In an effort to stem the accrual of further losses, plaintiffs real estate owners, managers, and trade associations sought and received a favorable judgment in federal district court in the District of Columbia.  With the judgment came an order enjoining the operation of the CDC order nationwide.  Notwithstanding its judgment and order, relief was immediately stayed by the issuing court because the court perceived that the government presented significant legal questions for review.  The United States Court of Appeals for the District of Columbia refused to vacate the order.  Petition to the Circuit Judge of the United States Supreme Court ensued.

Power and Its Exercise. Plaintiffs submit that the trial court was correct in perceiving that the CDC’s eviction moratorium order was not within its statutory power and that staying that determination has only increased irreparable harms to landlords nationally.  Plaintiffs submit that the statute authorizing the CDC to issue orders to stop the spread of disease is limited to quarantine and inspection measures.  The CDC’s disruption of landlord-tenant relations, powers reserved to the states, presents constitutional questions that the U.S. Supreme Court must review, and that pending that review, the stay must be vacated to prevent greater harm to the landlords.

Plaintiffs need relief notwithstanding that the current order will expire on June 30th, they argue, for the failure to vacate the stay will render plaintiffs’ victory meaningless.  

The Department of Health and Human Services, on behalf of its component the Centers for Disease Control, insist that the CDC has plenary powers to issue orders to inhibit disease providing the CDC articulates its perception of a need to do so.  Such powers are not unlimited, as plaintiffs argue, nor are there questions of unconstitutional delegation, for no power committed to the Legislative Branch has been delegated, and Congress may delegate to HHS the power to act in the interest of the public.

Equity (in the Traditional Sense). The arguments for emergency action by the Circuit Justice by and large concern whether or not appropriate standards for issuance of the stay in the trial court, or denial of vacation of that stay, in the appellate court, were selected and applied.  These are equitable considerations which involve not only judicial discretion and deference on review,  but also a showing of demonstrable error. 

The federal government is supported by twenty-three state amici.  Their brief indicates that states will administer federal monies to landlords to compensate for lost rent, but doing so will require time.  

JustLawful’s Crystal Ball:  The proximity in time of the emergency petition to the expiration of the CDC eviction moratorium creates high drama.  However, Circuit Justice Roberts may not wish to decide more law than is necessary, particularly as judicial deference to agency determinations would counsel against an eleventh hour intervention, especially where doing so might, either directly or paradoxically, further destabilize already deeply distressed rental housing conditions.  

Alabama Association of Realtors, et al. v. HHS 20A169 SCOTUS Application to Vacate Stay

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Lower Court Orders and Opinion

Alabama Association of Realtors, et al. v. HHS 20A169 Appendix – Provisions of Law

Association of Alabama Realtors, et al. v. HHS 20A169 Opposition

Alabama Association of Realtors, et al. v. HHS 20A169 Amicus Brief

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