By Khorri Atkinson

Law360 (May 18, 2021, 3:45 PM EDT) -- A group of landlords challenging the U.S. Centers for Disease Control and Prevention's nationwide moratorium on evictions urged the D.C. Circuit late Monday to vacate a lower court ruling pausing their earlier win.

The realtors and property owners argued in their emergency motion that the eviction ban, which aims to protect renters facing hardship in the wake of the pandemic, amounts to an unlawful "intrusion into the landlord-tenant relationship." They also said the lower court was wrong to stay its ruling while the Biden administration appealed, invoking the CDC's recent guidance that says people fully vaccinated against COVID-19 don't have to wear masks or physically distance indoors or outdoors.

Whatever public-health justification the agency may have had for an eviction moratorium last year, it can now only be described as pretextual, the landlords told the appellate court. They further noted that vaccines have been available for all American adults since mid-April and that the CDC's guidance cited a "continuing downward trajectory of cases."

"The president has hailed this development as a 'great milestone,'" the landlords wrote. "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. In reality, the eviction moratorium has become an instrument of economic policy rather than of disease control. And even if that point were debatable, the same could not be said for the lack of any public interest in prolonging unlawful action by the executive branch." 

The case landed in the D.C. Circuit's docket earlier this month after U.S. District Judge Dabney L. Friedrich gutted the eviction ban and ruled that the CDC exceeded its statutory authority. In Monday's motion, the landlords contended that while Judge Friedrich later granted the administration's request to pause the ruling pending appeal, the judge did not do so because she had second thoughts about the merits nor thought that a stay would leave plaintiffs unscathed.

"The judge continued to agree that the agency engaged in an unlawful action," they wrote, adding that she also "acknowledged that prolonging the moratorium would exacerbate the severe hardships borne by landlords across the country."

"The court decided to allow unlawful agency action to persist because, in its view, the government's appeal raised at least serious legal questions and implicated public-health concerns," the filing said.

Indeed, Judge Friedrich's May 14 order granting the CDC's emergency stay request said the agency has "made a showing of irreparable injury" that warrants a pause of her May 5 summary judgment ruling. As the federal agency tasked with disease control, the CDC has "a strong interest in controlling the spread of COVID-19 and protecting public health," the order added. 

"A stay to allow the D.C. Circuit time to review this court's ruling, presumably on an expedited basis, will no doubt result in continued financial losses to landlords," the judge added. "But the magnitude of these additional financial losses is outweighed by the department's weighty interest in protecting the public."

In her initial ruling, Judge Friedrich said Congress did not express a clear intent to grant the CDC such sweeping authority under the Public Health Service Act to ban evictions nationwide. The ban, first put in place by the Trump administration, was recently extended until June 30.

"The question for the court is a narrow one: Does the Public Health Service Act grant the CDC the legal authority to impose a nationwide eviction moratorium? It does not," the judge wrote. "Because the plain language of the Public Health Service Act … unambiguously forecloses the nationwide eviction moratorium, the court must set aside the CDC order."

The part of the federal statute most at issue is Section 361 of the PHSA, where the CDC garners its isolation and quarantine authority. It empowers the agency to take certain measures to keep communicable diseases from being brought into the country and from being spread between the states.

That's exactly what the agency said it was doing when it issued a moratorium on evictions back in September, which has since been extended several times, once by Congress and twice by the CDC itself. But the realtors and property owners insisted that the agency didn't have the power to do so.

The CDC's order was originally slated to expire in December, but Congress granted a temporary extension of the eviction moratorium through the end of January. The agency later moved to extend the eviction moratorium from March 31 through June, but without congressional approval.

In Monday's filing, the landlords reiterated Judge Friedrich's finding that when Congress originally granted the temporary extension, it acknowledged that the CDC issued its order pursuant to the PHSA. But it did not, however, expressly approve the agency's interpretation of the law nor provide the agency with any additional statutory authority to extend the ban, they said.

The CDC's order has been facing a wave of legal challenges across the country by property owners and trade associations who are pushing to recover from nonpaying tenants, and at least 8.8 million households find themselves behind on rent more than a year into the pandemic.

To reinforce their argument against the ban, the landlords pointed the D.C. Circuit to the Sixth Circuit's March 29 ruling in Tiger Lily LLC et al. v. U.S. Department of Housing and Urban Development et al. In that case, a three-judge panel unanimously declined to stay the case pending the government's appeal of a Tennessee federal judge's order that found the same eviction moratorium is unlawful. The panel concluded that because "the government is unlikely to succeed on the merits, we need not consider the remaining stay factors."

The landlords also urged the D.C. Circuit to expedite the case's briefing schedule and to issue a ruling by June 1 because the moratorium is expiring at the end of that month.

According to the filing, this would give them "a meaningful remedy" or the chance to seek relief from the U.S. Supreme Court. The brief also indicated that the government supports the landlord's request for a prompt review. Under the proposal, the government has until May 24 to reply to the landlords' emergency motion to lift the stay. The challengers would file their response brief by May 26.

Representatives for the parties did not immediately reply Tuesday to requests for comment on the motion.

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 is represented by Alisa B. Klein and Brian James 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 1:20-cv-03377, in the U.S. District Court for the District of Columbia.

--Additional reporting by Nadia Dreid and Grace Dixon. Editing by Alyssa Miller.

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