Law360 (June 2, 2021, 7:36 PM EDT) -- The D.C. Circuit on Wednesday denied a request from realtors and landlords to block the U.S. Centers for Disease Control and Prevention's eviction moratorium during an appeal, keeping the ban in place and suggesting the government may well prevail in its defense.
A three-judge panel issued a seven-page per curiam order denying the motion to lift the administrative stay that a D.C. federal judge placed on her May 5 ruling against the nationwide moratorium, which she found exceeded the CDC's statutory authority.
A three-judge panel said the judge was well within her authority to stay her own ruling. The panel said it would not lift that stay because the government has a good chance of winning its appeal.
"While of course not resolving the ultimate merits of the legal question, we conclude that [the government] has made a strong showing that it is likely to succeed on the merits," the panel said. "Congress has expressly recognized that the agency had the authority to issue its narrowly crafted moratorium."
The D.C. Circuit panel also said the realtors and property owners who brought the suit failed to demonstrate they were likely to suffer irreparable injury if the stay remained in place.
"The record does not demonstrate any likelihood that appellees themselves will lose their businesses, that an appreciable percentage of their own tenants who would otherwise pay in full will be unable to repay back rent, or that financial shortfalls are unlikely ultimately to be mitigated," the panel said. "On top of that, the obligation to pay all rent due remains, and provision has been made to address the interim shortfalls."
That "provision" likely refers to government funding for rental assistance, which was part of the $1.9 trillion pandemic relief package that became law in March.
Counsel for the parties did not immediately respond to requests for comment Wednesday.
Wednesday's ruling suggests the D.C. Circuit is ready to overturn the May 5 decision by U.S. District Judge Dabney L. Friedrich to vacate the nationwide moratorium. The appeal does not have an oral argument scheduled.
In briefs leading up to the order, the realtors and landlords told the D.C. Circuit the unlawful "intrusion into the landlord-tenant relationship" should end as the nation makes progress on COVID-19, citing the CDC's May 13 guidance that vaccinated people can safely go without masks in most situations.
"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," said the challengers, who are represented by Jones Day with the Alabama Association of Realtors as the lead plaintiff.
The government fired back that the argument was "baseless" because the updated guidance "does not change the basic facts underlying the CDC [eviction ban] order: COVID-19 spreads quickly and easily among unvaccinated individuals, and evictions exacerbate its spread."
The eviction moratorium dates to the March 2020 CARES Act, which included a six-month ban that was succeeded by a CDC order in September. The CDC's order was originally slated to expire in December, but Congress granted a temporary extension through the end of January. The agency later moved to extend the eviction moratorium through June 30, but without congressional approval.
Experts have told Law360 that district courts' wide-ranging legal interpretations of the constitutional and statutory arguments brought against the ban are leaving state courts with inconsistent guidance on how to handle eviction cases. This has left the moratorium's enforcement up to each individual judge's discretion.
Judges Patricia A. Millett, Cornelia T.L. Pillard and Robert L. Wilkins sat on the panel for the D.C. Circuit.
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 agencies are represented by Brian M. Boynton, Alisa B. Klein and Brian J. 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 21-5093, in the U.S. Court of Appeals for the D.C. Circuit.
--Additional reporting by Khorri Atkinson, Grace Dixon and Nadia Dreid. Editing by Orlando Lorenzo.
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