A Vaccination Compliance Cauldron: Ten States Insist Federal Covid-19 Healthcare Providers’ Mandate Is Constitutionally, Statutorily, and Procedurally Unsound

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.). Complaint filed November 20, 2021.


Ten states have joined in challenging the action of the United States Department of Health and Human Services (HHS), Centers for Medicare and Medicaid Services (CMS) in promulgating an Interim Final Rule with Comment Period (IFC) that conditions health care providers’ receipt of federal funding and reimbursement on employee or contractor vaccination against COVID-19.  

Providers and Employees Threatened. Health care providers whose employees fail to comply with the federally mandated demand that all health care workers be vaccinated against Covid-19 may lose federal funding,   As vaccination refusal will threaten employer compliance with the federal measure, unvaccinated employees may lose their jobs.

Exacerbation, Not Mitigation.  The states submit that this sweeping federal incursion on health care administration threatens to exacerbate an already extant crisis in health care provision, which crisis only deepened during the COVID-19 pandemic, forcing states to undertake drastic measures to ameliorate the deadly synergies of two crises which individually would have sufficed to cause health care services to crater. 

          To the extant shortage of workers and threat of harm from viral infection the federal government has added a compliance burden that, the states contend, violates the interests of the states, the healthcare providers and entities within the states, and the healthcare workers who must submit to vaccination or face termination. 

State Standing.  Having brought their complaint in the United States District Court for the Eastern District of Missouri, the states and their attorneys general assert standing premised on exercise of parens patriae powers or statutory authorizations. 

Effective Immediately.  The Interim Final Rule, also called  the CMS vaccine mandate, became effective on publication on publication in the Federal Register on November 5th.  Its protocol demands at least partial vaccination compliance by the first week of December, a deadline that only compounds the problems the rule has caused, the states note.  

          Most significantly, the states argue, the Interim Final Rule is not merely factually detrimental to the provision of health care services, the rule itself and the manner in which the rule was crafted is in violation of central components of the Administrative Procedures Act (APA) and the United States Constitution.

The CMS Vaccine Mandate Makes Matters Worse.  The complaining states assert that the sweeping federal incursion on providers’ rights will exacerbate and extant shortage of workers.  The federal scheme is an unconstitutional abridgment of rights traditionally reserved to the states, and is not only legally flawed but also is, as a practical matter, administratively disastrous, as the health care needs of densely populated urban areas are markedly varied from those of rural settings.  

The CMS vaccine mandate must be set aside.  The states ask that the federal court declare the CMS vaccine rule be declared invalid constitutionally and in violation of the Administrative Procedures Act (APA) and other statutes, and that its enforcement be enjoined.

Not an overnight development.  Healthcare workforce shortages predate the COVID-19 pandemic by decades, the states recount.  Nursing shortages, already critical, have been made all the more so by the demands for urgent and other care precipitated by the pandemic. Many nursing professionals feel they cannot continue to work as they have been.  Many have been attracted to positions offering better working conditions are higher compensation. 

          Staffing shortages threaten the capacity of hospitals to administer care.  To address pandemic care needs, states relaxed standards for the provision of services, permitted workers to work without vaccination, and expanded telehealth services.

          The states are critical of the implementation of the administrative rule per see where doing so represents and Executive Branch about face from federal non-involvement in vaccination to a nationwide push for COVID-19 vaccination compliance that threatens workers with loss of employment and provider entities with loss of available federal funding.   

Reaching beyond providers.  Where health care workers cannot work, providers will be unable to provide services, and the patient public will be denied care.  Each of these outcomes, the states observe, is contrary to sound policies of health care delivery.

A diverse panoply of providers under a single rubric.   There are fifteen categories of Medicare and Medicaid providers, encompassing urban and rural clinics, hospitals, long-term care facilities, and home health agencies. 

          CMS reports that nearly all hospitals within the United States are connected in some measure to Medicare and Medicaid.  Although CMS has recognized the diverse purposes and practices of these categories of providers and suppliers, CMS has embroidered on all covered providers and suppliers the measures applicable to long-term care facilities, the states observe. 

          Moreover, CMS appears to recognize the adverse consequences of the vaccine mandate:  failure to comply will threaten health care workers with loss of employment, which in turn will deepen an already critical worker shortage, which in turn will impact access to care.

No comment.  The states point out that there has never before been a federal vaccination mandate, and that the newly-effective rule is unsound on multiple grounds.  The states notes that CMS abandoned the comment period ordinarily required for rules of the magnitude of the unprecedented healthcare vaccine mandate.  Moreover, CMS has failed to locate with accuracy its authority to promulgate the vaccine mandate.

Unauthorized rule-making. The states argue that there is no statutory authority for the CMS vaccine mandate, and that none of the authorities cited by the CMS as authorizing the mandate do so.  This legally unsupported rule will cause the states great economic harm, particularly as states will not only be threatened with loss of federal resources but the states’ own administrative resources have been conscripted to serve the federal government. 

Hindsight unavailing.  The states submit that the CMS has relied on post-hoc rationalizations to support the rule, an impermissible approach which renders the measure arbitrary, capricious, and not in accordance with law. 

Constitutionally intrusive.  The states argue that compulsory vaccination is traditionally a power reserved to the states.  The federal expansion of power over the states violates the Tenth Amendment, the states submit.

Doctrinally unsound.  The states argue that the CMS vaccine mandate is unsound as it is a measure of national breadth and depth that is not supported by clear Congressional directive, and thus runs afoul of the major questions doctrine.   Similarly, the co of a Congressional articulation of an intelligible guiding principle, the CMS vaccine rule violates principles of non-delegation.

Outside professional bounds.  The states observe that the CMS vaccine mandate is precluded by the Social Security Act, which forbids supervision or control over the practice and provision of medicine and medical services.

Procedurally flawed.  The states submit that the Administrative Procedures Act (APA) is not inaptly named, and that no sound excuse exists for CMS’ failure to adhere to notice and comment procedures which permit interested persons’ participation in administrative processes.  

          CMS not only failed to adhere to these processes but its rule became effective on publication with initial compliance to be completed within thirty days.  Additionally, CMS failed to comply with the sixty-day pre-publication requirement of the Social Security Act.  

Input not sought.  CMS failed to confer with the states concerning the mandate as it is required to do.

Unconstitutional conditions imposed.   The federal government may not impose conditions on funding unrelated to the programs impacted or without notice to the states that vaccination would be required in order to obtain federal funds.  

State resources conscripted.  In enacting measures which threaten providers’ finances through demands on employees, the states observe that is is an infringement on state powers for the federal government to demand that state administrative resources be expended in service of federal aims.

Declaratory and injunctive relief sought: looking forward. The states have requested declaratory and injunctive relief which would nullify the CMS vaccine mandate and prohibit its enforcement.  At this writing the federal court has not issued any orders relating to the case, although in light of the abbreviated time frame for compliance with the CMS vaccine mandate, it is anticipated that there will be activity related to this case soon.  

Missouri, et al. v. Biden, et al., No. 21-cv-01329 (E.D. Mo.) Complaint






As Vaccination Regulation Litigation Erupts, the Fifth Circuit Stays Mandate Pending Expedited Briefing


 

BST Holdings, et al. v. Occupational Safety and Health Administration, United States Department of Labor, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021.


 

On Friday, November 5, both the U.S. Department of Labor, Occupational Safety and Health Administration (OSHA) and the U.S. Department of Health and Human Services, Center for Medicare and Medicaid Services (CMS) published regulations in the federal register respectively governing mandatory Covid-19 vaccination or testing and masking for employees of certain employers and governing mandatory vaccination within health care providing entities, the failure to comply with which would threaten federal financial support.

The same day, litigation challenging the labor based regulations was filed in four federal circuit courts of appeal. At this time, there are no known proceedings challenging the CMS regulation, although some have promised that litigation will be commenced.

The United States Court of Appeals for the Fifth Circuit, perceiving that the litigation presents “grave” issues of statutory and constitutional law, today stayed the mandate pending expedited briefing, to be completed by Tuesday, November 9.

The challengers in the Fifth Circuit are private employers impacted by the federal vaccine mandate, which governs entities with one hundred or more employees These private entities have been joined by several states.

The challengers argue that the OSHA Emergency Temporary Standard which is proffered as the premise for mandating vaccination does not and cannot support that demand, as the authority of OSHA is limited to workplace hazards and dangers which would place a virus beyond its scope.

Even if it could be seen that regulation might be possible, it would be constitutionally impermissible on these facts, the challengers assert, as the present federal vaccination scheme does not touch upon interstate commerce, as any exercise of such powers in the absence of a defined Congressional standard violates the non-delegation doctrine, and as the power to address questions of public health in the manner envisioned here is reserved to the states for administration under the Tenth Amendment of the United States Constitution. Moreover, the authority of the Department of Labor is constrained to administration of employment and work related matters, and it is beyond the scope of its powers to regulate individual health choices in the guise of imposing an obligation on employers.

Challenges to the new federal measures in other circuits raise additional claims, submitting to the courts that the vaccine mandate offends the First Amendment and the Religious Freedom Restoration Act.

In that there is a limited period of time within which to challenge these regulations, it is likely that these cases will unfold quickly. It is less likely, however, that any of the litigation will ‘skip a grade’ and proceed on an emergency basis to the U.S. Supreme Court. In recent weeks the Supreme Court has on three occasions declined to hear petitions for emergency relief concerning vaccination mandates.

All this unfolds amid multiple challenges in other forums, not the least of which are challenges to regulations extending mandated vaccination beyond federal employees to employees of federal contractors.

The “headline power” of the private employer mandate discussed here ought not obscure the significance of any of the other litigation concerning the sweeping exercise of federal powers premised on a perceived public health emergency in itself has been called into question.

Order of the United States Court of Appeals for the Fifth Circuit:

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.). Per curiam order entered November 6, 2021_

Challenges to the OSHA Emergency Temporary Standard (ETS):

BST Holdings, et al. v. OSHA, No. 21-60845 (5th Cir.) Petitioners Brief November 5, 2021

Commonwealth of Kentucky, et al. v. OSHA (6th Cir.) Petition Filed November 5, 2021

State of Missouri, et al., v. Joseph R. Biden, President of the United States, et al. (8th Cir.) Petition Filed November 5, 2021

State of Florida, et al. v. OSHA (11th Cir.) Petition Filed November 5, 2021

 

At the Hour of Our Death: Supreme Court to Consider Prisoner’s Plea for Prayer and Touch in Execution Chamber


Ramirez v.  Collier, Executive Director of the Texas Department of Criminal Justice, et al., No. 21-5592.  Oral argument set for November 9, 2021.   


The Supreme Court will soon consider whether Petitioner Ramirez, sentenced to death for a capital crime, may prevail in his claim that the State of Texas’ has violated the Religious Land Use and Religious Persons Act by refusing Ramirez’s request that his spiritual advisor not only be present in the execution chamber but also be permitted to pray aloud and to lay hands on Ramirez during the execution.

 

RLUIPA was enacted after the Supreme Court concluded that the Religious Freedom Restoration Act (RFRA) could not apply to the states.  Both statutes provide protections for religious exercise that may exceed the guarantees of the First Amendment, by shifting burdens of proof and persuasion and by permitting latitude in what may be considered a religious exercise.  

 

Thus a prisoner need not establish that a requested religious accommodation refers to a normative practice in any spiritual practice adhered to by the prisoner.  The state, however, must establish not only that its practices support a compelling government interest and that the state has employed the least restrictive means in furtherance of that goal.  

 

The presence of ministers in the death chamber has been permitted in Texas, in other states, and in the federal system.  At this time, Texas’ rules and regulations appear not to preclude such a presence, but interpretive guidance, some apparently issued in response to Ramirez’ requests, rule out vocalization and laying on of hands during and following the administration of lethal injections.

 

On its face Ramirez’s request appears compelling and its denial cruel.  What possible end could be served by denying a prisoner the solace of prayer and touch at death?  Safety and security, says the state.  

 

The state, through the Texas Department of Criminal Justice  opines that past procedures permitting religious attention at execution were supported by safety protocols permitting state employees, not volunteers, to provide religious support.  Sabotage and the creation of chaos in the execution room cannot be ruled out, the state argues, as such events are not without a basis in history and the likelihood of a disruptive occurrence is enhanced  if a volunteer minister would be so close to the prisoner that the disruption of the flow of medication or to removal of needles or restraints.  

 

Moreover,  the state argues that its practices and prohibitions respect the dignity of the prisoner by permitting audio surveillance from outside the execution chamber of the administration of lethal substances and the dying process.  Audible prayer would thwart that process, making it more likely that the state could not remediate the execution timely and enhancing the chance of an agonizing death.

 

Religious advocacy groups and scholars of religious freedoms have aligned with Ramirez, particularly in service of precluding interpretations of RLUIPA that would permit accommodations only if the state were affirmatively precluding a recognized religious practice.  

 

Several states have asserted that the states must be deferred to in fashioning acceptable execution chamber protocols.  The states fear a flood tide of litigation intended only to forestall executions, all in defiance of the Prison’ Litigation Reform Act, which would hamstring the state in administering sentences, thereby undermining the criminal justice system and principles of federalism. 

 

The United States has urged the Supreme Court to remand the case for resolution, particularly for further articulation of the parties’ interests.

 

Joining in advocating for bringing to a conclusion Ramirez’ litigation are the survivors of Carlos Ramos, who died after having been stabbed twenty-nine times by the Petitioner.   Ramos’ children, now grown, ask that the Court not be unmindful that at each stage of litigation the trauma of their loss is revived.  The Ramos family asks how it is that media attention appears to cast Ramirez as heroic, where their father was denied a sacramental death.  


JustLawful note:  This comment omits consideration of the exhaustion of remedies argument that is also presented in this case.

JustLawful Comment: Leaving aside the flood tides of dilatory claims, administration of justice, and federalism questions, which are not insignificant, it is difficult to believe that the requested ministerial presence and prayer and touch practices could not be accommodated through prison protocols protecting the interests of all.   “Accommodation” by definition suggests that each party yield — by inches if not by yards — to the other.  The parties seem disinclined toward such a perspective, yet the Court may order remand in furtherance of such a result, which would likewise aid the Court in avoiding unnecessary decisions.


Case Materials:

Brief of Petitioner Ramirez September 27, 2021

Brief for Respondents October 15, 2021

Reply Brief For Petitioner October 25, 2021

Ramirez v. Collier Joint Appendix Vol. I

Amicus Submissions in Support of Petitioner Ramirez

Amicus First Liberty Institute September 27, 2021

Amicus Scholars of the PLRA and Prison Grievance Systems September 27, 2021

Amicus The United States Conference Of Catholic Bishops September 27, 2021

Amicus Religious Liberty Scholars September 27, 2021

Amicus Becket Fund for Religious Liberty September 27, 2021

Amicus Christian Legal Society, et al. September 27, 2021

Amicus Spiritual Advisors and Former Corrections Officials September 27, 2021

Amicus Former Prison Officials September 27, 2021

Amicus Alliance Defending Freedom September 27, 2021

Amicus Protect the First Foundation September 27, 2021

Amicus Submissions in Support of the Respondents

Amicus Arizona, et al. in Support of Respondents October 15, 2021

Amicus Pablo Castro’s Children October 15, 2021

Amicus Criminal Justice Legal Foundation October 15, 2021

Amicus Submissions in Support of Neither Party

Amicus the United States September 27, 2021

Amicus Freedom from Religion Foundation et al. September 27, 2021

 

 

 

 

 

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)

 

 

The United States Urges the Supreme Court to Keep the CDC Eviction Moratorium in Effect

Alabama Associaion of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21A23.  Response of the United States submitted August 23, 2021.


Today the United States submitted to the Supreme Court its view that the judicial stay of an order vacating the Centers for Disease Control (CDC) Eviction Moratorium must remain in place during pending litigation.  The government argues that the circumstances surrounding the August 3, 2021 order halting certain evictions differ from those presented during the first, and later extended, moratorium order. The government argues that equity favors the stability the stay provides, while the realtors and landlords impacted by the CDC orders cannot establish that they will be irreparably harmed by preserving the status quo.

Times Have Changed.  The United States disputes the conclusion reached by the United States District Court for the DIstrict of Columbia that the August 3, 2021 is materially the same as its predecessor, pointing to the emergence of the highly transmissible Delta variant of the Covid-19 virus, which, the government submits, provided the impetus for issuing a new CDC eviction moratorium order days after an earlier order, determined to have been unconstituional, lapsed by its own terms.  In support of its position, the government points to a reported increase in illness subsequent to the issuance of the new moratorium.  

Neither the September, 2020 nor the August, 2021 CDC Orders Is Legally Flawed.  The United States, on behalf of the Department of Health and Human Services (HHS) and its component, the Centers for Disease Control, argues that the legislature conferred upon HHS broad powers to take measures to inhibit the spread of contagious diseases, including the implementation of the eviction moratorium.  Given that HHS may plainly issue orders of quarantine, it would be unseemly to conclude that HHS could not forbid landlords from evicting tenants during a pandemic.  

The idea that the legislature needed to be more specific in its delegation of powers cannot succeed, the United States observes, where the 2021 Appropriations Act relied upon the  legislation authorizing emergency public health measures in order to appropriate funding to make landlords whole.  This incorporation recognizes the aptness of reliance on the earlier legislation, making further legislative specificity unnecessary. 

Neither Commerce Clause nor non-delegation arguments can prevail where it has been established that measures inhibiting the interstate transmission disease are permitted and where broad powers to act “in the public interest” have been upheld.

The Moratorium Suits the Circumstances.  In ordering relief from forced evictions, the CDC observed that evictions would force persons and families into homelessness, causing them to be housed in temporary shelters or other places where crowding would increase the risk of contagion.  Most importantly, the government argues, the August 3, 2021 order applies only where there exist high risks of contagion and only to those unable to meet their obligations to their landlords.

The Greatest Good for the Greatest Number.  The government and the people will suffer greatly if the government’s current plan to freeze evictionsis disturbed.  Property owners, on the other hand, have not been able to provide reliable evidence of their losses, for which, in any case, the government has promised financial assistance. 

What Might Have Been Is Not What Is.  The United States resists the position taken by realtors and landlords that Judge Kavanaugh’s observation that he would have granted review earlier if he were not assured that the eviction moratorium would expire at the end of July now compels the Supreme Court to grant review and to vacate the stay.  Remarks made in support of denying review cannot now be transformed into an indication that review would have been granted had matters been otherwise.  Not only do new facts support the new CDC measures, but in the absence of a controlling opinion a litigant may not, by pointing to a concurrence in support of an earlier denial of review, later recast that concurrence as a vote supporting review. 

Time of Ruling Unknown. The case docket does not now disclose any activity beyond the present submissions of the parties.   

Alabama Association of Realtors v. HHS, No. 21A23 Response in Opposition

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

D.C. Circuit Orders Stay of Constitutionally Defective Eviction Moratorium is to Remain in Place

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, et al., No. 21-5093 (D.C. Cir.) Order denying emergency motion for stay filed August 20, 2021.


The United States District Court for the District of Columbia Circuit today denied an emergency motion to vacate the stay of the U.S. District Court’s order vacating the CDC Eviction Moratorium.  The court noted that it had previously denied such relief and that the federal district court had denied relief as well.

Whether review in the U.S. Supreme Court will be sought is not known at this writing.

Alabama Association of Realtors, et al. v. HHS 21-5093 Order 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

New CDC Eviction Moratorium Is Defective, But Federal District Court Cannot Vacate Its Earlier Stay Where the Order of the D.C. Circuit Court of Appeals Upholding that Stay Is the Law of the Case

Alabama Association of Realtors, et al. v. U.S. Department of Health and Human Services, No. 20-0377-DLF.  Opinion and Order issued August 13, 2021.


The federal district court in the District of Columbia has compared the August 3, 2021 Order of the Centers for Disease Control imposing a nationwide stay of evictions until October 31, 2021 and found it to be not materially different from the order preceding it, which has been found to be, and has been admitted to be, constitutionally defective.  

Were it possible to do so, the federal district court said today, the court would enter an order similar to the order of vacatur issued previously.  The court cannot do so, however, because the United States Court of Appeals for the District of Columbia Circuit refused to disturb the district court’s earlier stay of its order of vacatur.  The appellate court’s refusal to grant relief, which left the district court’s stay of its order of vacatur in place, is the law of the case which the district court may not now ignore. 

The appellate court and the district court were not of the same analytical minds with respect to the initial stay, but this is of no moment at this time.  Plaintiffs’ recourse is in the appellate court or in the United States Supreme Court.  

There is Need for a Meta Crystal Ball.  It is not known at this time whether the plaintiffs will once again seek relief in the United States Supreme Court prior to seeking relief or continuing its current appeal in the D.C. Circuit Court of Appeals.  Although the United States Supreme Court denied plaintiffs’ earlier petition, Justice Kavanaugh opined that he would have agreed with the justices who would have granted relief but for the imminent expiration of the first Centers for Disease Control Order.   While plaintiffs in this case asserted that Justice Kavanaugh’s opinion in essence created a majority that would grant relief, the United States argued the concurrence in denying relief could not be transformed into one granting relief, as plaintits wished, a position with which the district court has agreed.  As the other justices’ votes are known publicly, but their analyses and opinions are not, assessment of a likely outcome if relief were sought first in the Supreme Court will no doubt provoke much discusson. 

JustLawful Observation: Whether in the present posture of the case plaintiffs will renew their request for relief in the United States Supreme Court rather than in the D.C. Circuit Court of Appeals is, of course,  a matter of speculation.  While much of today’s ruling may have too much of a “yes-but-no” flavor, and seem to rely on jurisprudential concepts pleasing to judges and lawyers but confounding to the public, there may be some comfort in considering that it is likely that not too much time will pass before the next round of litigation begins.  

Alabama Association of Realtors, et al. v. HHS, No. 20-0377Memorandum Opinion and Order dated August 13, 2021

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.