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