Supreme Court Grants Realtors’ and Landlords’ Petition for Relief from Stay of Judgment Vacating CDC Eviction Moratorium as Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23. Order granting emergency petition for relief from stay issued August 26, 2021.

The Supreme Court has lifted the stay of the United States District Court’s judgment vacating the Center for Disease Control order imposing a nationwide mortatorium on evictions. 

It is not only rare that the Supreme Court would reach down to a trial court to vacate that court’s order during the pendency of appellate litigation, it is even more rare that the Court would so forcefully tip its hand concerning the likely outcome should the merits of the litigation be reached:   The CDC’s exercise of power in issuing the eviction moratorium was so far outside its authority that, with respect to the likelihood of success of the realtors’ and landlords’ challenge, “it is difficult to imagine them losing.”  (Per Curiam opinion, p.5).  

Should a nationwide eviction moratorium remain desirable, Congress must specifically authorize such a measure. 

Three justices dissented, citing changed conditions supporting the issuance of a new eviction moratorium and finding that the statute granting the CDC powers to act to control communicable disease support the eviction moratorium orders.

21A23 Alabama Assn. of Realtors v. Department of Health and Human Servs. (08_26_21)

 

 

Having Twice Failed to Uproot the Stay that Keeps the CDC Eviction Moratorium in Place, Realtors Association Again Seeks Emergency Relief in the U.S. Supreme Court

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21A23.  Application to vacate stay submitted on August 20, 2021.  Government to respond by noon on August 23, 2021.


Applicants Alabama Association of Realtors have filed in the United States Supreme Court an application for emergency relief which would vacate the U.S. District Court’s May 14, 2021 stay of its May 5th order vacating the Center for Disease Control (CDC) moratorium on evictions.

The emergency application was submitted the same day that the United States Court of Appeals for the District of Columbia Circuit denied relief from the stay for the second time.

Applicants argue that not only has the United States District Court for the District of Columbia found the CDC eviction moratoria to be unconstitutional, but also that the executive branch has admitted this to be true, but has nonetheless encouraged litigation as a delay tactic in the hope of distributing billions in rental assistance monies through the states.  

When the initial series of eviction orders lapsed on July 31, 2021, Congress failed to specifically authorize the CDC to exercise the power that it has, which legislative action Associate Justice Kavanaugh opined would be needed going forward when he denied review only because the government promised the Court that the eviction orders would end on July 31, 2021.  As this was clearly not the case, relief is now warranted, the applicants submit.

Permitting the stay to remain in place would undermine confidence in the federal government internally and in the eyes of the nation, as it would allow legislative inaction to promote admittedly unconstitutional administrative action and let the Court know its views are of no consequence.

The ongoing presence of a federal moratorium represents both an assault on the integrity of the system of government itself but also a tectonic shift in the exercise of powers affecting the rights and interests of property owners.  The eviction moratorium has been promulgated by a sovereign which is immune from suit and which will resist takings actions, provides benefits to those who are admittedly judgement-proof, and criminalizes landlords’ actions to protect their property through eviction proceedings.  Any financial benefit, in the form of rental assistance, has been lost in bogs of state bureaucracies charged with distributing the funds.

The realtors association argues that the same factors that warranted emergency relief that were present before are present now and then some.  Any reliance on ‘changed conditions’ manifested by the Delta variant of the Covid-19 virus is misplaced, as the government was aware of the Delta variant when it permitted the CDC order to lapse on July 31, 2021, and the harms predicted from the variant have failed to materialize.

The applicants note that the idea that money damages will make landlords whole is not supported in law or fact.  The Administrative Procedures Act does not permit an award of money damages, and the costs of compliance with an unlawful regulatory regimen are incapable of being fairly compensated. 

 

Alabama Association of Realtors, et al. v. HHS, No. 21A23 Application for Emergency Relief August 20, 2021

The Stay Must Go: Realtors Seek Emergency Appellate Relief from Stay of Order Holding CDC Eviction Moratorium Unconstitutional

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 21-5093 (D.C. Cir).  Parties jointly request ruling on petition for emergency relief by August 19, 2021.


Plaintiffs/appellees seek emergency relief in the D.C. Circuit Court of Appeals from the federal district court’s May 14, 2021 issuance of a stay pending appeal of its order vacating as unconstitutional a CDC Eviction Moratorium. On June 2, 2021, the D.C. Circuit Court of Appeals declined to disturb the district court’s stay, finding that the district court did not abuse its discretion in entering a stay pending appeal.

Last week the U.S. District Court determined that the newly-issued August 3, 2021 Center for Disease Control eviction moratorium is as defective as its predecessor, which lapsed on July 31, 2021. The court found that its earlier order of vacatur of the old CDC eviction order could embrace the new CDC eviction moratorium.  However, the  court concluded that it could not give life to its determination because the court could not vacate its own order staying its order of vacatur of the old CDC eviction order because the D.C. Circuit had concluded that the district court’s stay of its order of vacatur pending appeal was not an abuse of discretion. The appellate affirmance of the stay, the federal district court concluded, bound the court under the doctrine of the “law of the case.”. 

The realtors now argue that the “law of the case” does not apply to the stay in this case, as the doctrine concerns only matters actually decided in a case, not interim measures intended to preserve the status quo pending a determination on the merits or on appeal.  The government insists that “[T]he same issue presented a second time in the same case in
the same court should lead to the same result.” (Citation omitted.) 

Both parties have submitted previews of their merits arguments and have requested an expedited briefing schedule subsequent to the appellate court’s ruling on the emergency petition. 

Plaintiff/Appellees’ Submission Contains a Compilation of Previous Arguments and Rulings:

Alabama Associaton of Realtors et al v. HHS, No. 21-5093 Emergency Motion

The government’s response:

Alabama Association of Realtors et al v. HHS No. 21-5093 Opposition to Motion for Emergency Relief

Nixxing Ipse Dixit: U.S. Supreme Court Finds New York’s Covid-Related Tenant Financial Hardship Self-Certification Provisions Deny Landlords Due Process

Chrysafis, et al., v. Marks, No. 21A8.  Order granting injunctive relief pending disposition in Second Circuit or of Petition for Certiorari entered August 12, 2021.  


New York’s pandemic related tenant protections preclude eviction if a tenant self-certifies to financial hardship.  Landlords may not challenge such self-certifications.  This, the U.S. Supreme Court has concluded, impairs landlords’ due process interests, as established law has observed that “no man may be a judge in his own case.”  Order of August 12, 2021, citing In re Murchison, 349 U. S. 133, 136 (1952).  

By order entered August 12, 2021,  the Court has enjoined the preclusive effect of tenant self-certifications pending further judicial activity but has left undisturbed the capacity of courts to make assessments of financial hardship in eviction proceedings.  Such assessments could permit receipt of pandemic-related financial aid and could preclude eviction.

Justice Breyer, with Justices Sotomayor and  Kagan,  has dissented, opining that there is no basis in the law for the U.S. Supreme Court to reach the constitutionality of a state law measure which has not been enjoined by a state court, where there has been no determination in the Second Circuit Court of Appeals, where the emergency eviction measures will lapse of their own accord at the end of August, where there is available $2 billion dollars in federal rental assistance, and where landlords are not denied, but only delayed, a hearing, a circumstance which does not violate constitutional due process principles.  

Justice Breyer’s dissent notes that there is no First Amendment compelled speech issue presented by the state’s requirement that factual information be provided to tenants. 

While it is recognized that emergency measures are not wholly insulated from judicial review, it is Justice Breyer’s sense that in this circumstance, where any right to relief is not clearly established, where tenants may face displacement earlier than anticipated, and where the state must craft and administer many scientifically and medically complex emergency measures, the public interest would favor deference to the state.  

The U.S. Supreme Court’s decision has been presented to the federal court in the District of Columbia for consideration in connection with the court’s anticipated ruling on a challenge to the new federal eviction moratorium.

U.S. Supreme Court docket showing entry of order:

21A8 U.S. Supreme Court Docket

Order entered August 12, 2021

CHRYSAFIS . v. MARKS, U.S. Suprerme Court Order with Dissent August 12 2021

Submission to U.S. District Court for the District of Columbia:

Alabama Association of Realtors v. HHS, 20-03377, Notice of Supplemental Authority

Alabama Association of Realtors v. HHS, 20-03377, Exhbit A.