US Motion to Continue Rent Moratorium

EMERGENCY MOTION TO ENFORCE THE SUPREME COURT'S RULING AND TO VACATE THE STAY PENDING APPEAL

The Centers for Disease Control and Prevention's ("CDC") fourth extension of the eviction

moratorium until October 3, 2021, conflicts with the Supreme Court's ruling that the CDC could not

extend the eviction moratorium beyond July 31, 2021. After this Court entered final judgment holding

that the eviction moratorium "is unambiguously foreclosed by the plain language of the Public Health

Service Act," ECF 54, at 19, the Supreme Court allowed the moratorium to continue until July 31 in

reliance on the CDC's assurance that it had no intention of issuing a further extension, see Ala. Ass'n

of Realtors v. HHS, 141 S. Ct. 2320, 2320-21 (2021) (Kavanaugh, J., concurring) ("Because the CDC

plans to end the moratorium in only a few weeks, on July 31 . . . I vote at this time to deny the

application to vacate the District Court's stay of its order."). But as Justice Kavanaugh explained in

his controlling opinion, because the CDC "exceeded its existing statutory authority by issuing a

nationwide eviction moratorium," "clear and specific congressional authorization (via new legislation)

As that date approached, the White House repeatedly stated that the Supreme Court's ruling

had unequivocally blocked the CDC from extending the eviction moratorium through executive

action. Taking a cue from Justice Kavanaugh's controlling concurrence, Congress attempted to pass 1 Case 1:20-cv-03377-DLF Document 67 Filed 08/04/21 Page 2 of 16

legislation, but failed. After Congress's failure to extend the moratorium, the Speaker of the House

and other Representatives demanded that the CDC extend the moratorium through executive action

anyway. Thus began what became a tidal wave of political pressure put upon the CDC. One member

of Congress dared the CDC to do it: "Who is going to stop them? Who is going to penalize them?"

@RepMaxineWaters, Twitter (Aug. 2, 2021, 4:19 PM), https://bit.ly/2VhjaIA. The CDC held firm

for a few days--with support from the White House insisting that the Supreme Court's ruling had

But on August 3, the CDC caved to the political pressure by extending the moratorium,

without providing any legal basis. In substance and effect, the CDC's latest action is an extension of

the same unlawful ban on evictions that has been in effect since September 2020. Indeed, the fourth

extension relies on the same source of authority--Section 361 of the Public Health Service Act--that

this Court, the Sixth Circuit, and a majority of the Supreme Court found inadequate to justify the

eviction moratorium. The CDC's semantic recasting of the latest extension--which covers 90% of

renters across the country, while leaving intact its ability to ratchet up to 100%--is a distinction

This Court should immediately vacate the CDC's fourth extension because it conflicts with

the Supreme Court's ruling. A majority of the Supreme Court made clear that the eviction moratorium

exceeds the CDC's statutory authority and could not be extended beyond July 31, thus vindicating this

Court's first merits ruling. The Supreme Court's ruling was hardly ambiguous. Indeed, the White

House clearly acknowledged that the Supreme Court had ruled that the CDC lacked authority to

extend the moratorium--and that the CDC was blocked from extending the moratorium. Because

the CDC's August 3 extension conflicts with the Supreme Court's ruling, this Court should enforce

that ruling by vacating the August 3 extension (or simply clarifying that the original vacatur order

covers it) and vacating this Court's May 14 order granting a stay pending appeal.

Expedited relief vacating the August 3 extension is appropriate because the CDC appears to

have acted in bad faith. The Supreme Court ruled that only the Legislative Branch--not the

Executive--had authority to extend the moratorium. Critically, the CDC knew that the White House

had repeatedly stated that new legislation was necessary to extend the moratorium, given the absence

of executive legal authority. Congress tried, but failed, to enact a legislative extension in reliance on

those representations. Yet rather than accept that as the final word under our constitutional system

(which the White House initially appeared to do), the CDC extended the moratorium anyway. And

the CDC did so for nakedly political reasons--to ease the political pressure, shift the blame to the

courts for ending the moratorium, and use litigation delays to achieve a policy objective. The Court

should block the August 3 extension on an expedited basis to relieve the nation's property owners of

Pursuant to LCvR 7(m), undersigned counsel conferred with Defendants' counsel, who stated

On May 5, 2021, this Court held that the Public Health Service Act "unambiguously forecloses

the nationwide eviction moratorium." ECF 54, at 20. The Court rejected the government's assertion

that so long as the CDC "can make a determination that a given measure is `necessary' to combat the

interstate or international spread of disease, there is no limit to the reach of [its] authority" under the

Public Health Service Act. Id. at 15. As the Court explained, construing 42 U.S.C. 264 to "extend[]

a nearly unlimited grant of legislative power" to the Secretary would not only "ignore its text and

structure," but would also "raise serious constitutional concerns," including the legality of "`such a

broad delegation of power unbounded by clear limitations or principles.'" Id. at 14; see id. at 7-16. In

addition, the Court observed, accepting the government's "expansive interpretation" would require

embracing the implausible assumption that Congress "delegated to the Secretary the authority to

resolve not only" the momentous decision to criminalize evictions nationwide, but "endless others

that are also subject to `earnest and profound debate across the country.'" Id. at 15. Because

"Congress did not express a clear intent" to confer "such sweeping authority," the court declined to

take that step itself. Id. at 14; see id. at 14-16. The Court therefore issued a final judgment vacating

The Court nevertheless entered a stay of its final judgment pending appeal. ECF 60-61. In

doing so, the Court acknowledged that the government had failed "to demonstrate a likelihood of

success on the merits" and that this is "[a]rguably ... a fatal flaw for its motion." ECF 61, at 7. But

relying on D.C. Circuit precedent, the Court determined it could employ a "`sliding scale approach'"

under which the government "`need only raise a serious legal question' if the `other factors strongly

favor issuing a stay.'" Id. at 2-3 (citations omitted). As the Court explained, the government had "met

this less demanding standard" in part because two other district courts had "disagreed" with the

Court's analysis, "at least at the preliminary injunction stage." Id. at 7-8. Turning to the equities, the

Court acknowledged that a stay "will no doubt result in continued financial losses to landlords," which

remain "severe." Id. at 9. But the Court decided that the equities favored the government on the

theory that "some" of these losses could be recovered and that "public health" considerations were

more important. Id. The D.C. Circuit subsequently denied Plaintiffs' motion to vacate the stay in an

unpublished opinion. See Ala. Ass'n of Realtors v. HHS, No. 21-5093, 2021 WL 2221646 (D.C. Cir.

After Plaintiffs asked the Supreme Court to vacate the stay, the CDC extended the eviction

moratorium for a third time through July 31, 2021. See CDC, Temporary Halt in Residential Evictions to

Prevent the Further Spread of COVID-19 (June 24, 2021), https://bit.ly/3fuLygS. In issuing the order,

the CDC stated that "[a]lthough this Order is subject to revision based on the changing public health

landscape, absent an unexpected change in the trajectory of the pandemic, CDC does not plan to

The Supreme Court relied on this assurance from the CDC when it denied Plaintiffs'

application to vacate the stay pending appeal on June 29, 2021. See Ala. Ass'n of Realtors, 141 S. Ct.

2320. But four justices--Justices Thomas, Alito, Gorsuch, and Barrett--would have "grant[ed] the

application" because Plaintiffs had carried their burden to demonstrate, among other things, that the

CDC exceeded its statutory authority in issuing the moratorium and that the equitable factors did not

justify a stay. Id. That is because under Supreme Court practice, a Circuit Justice may "vacate a stay

where it appears that the rights of the parties to a case pending in the court of appeals, which case

could and very likely would be reviewed here upon final disposition in the court of appeals, may be

seriously and irreparably injured by the stay, and the Circuit Justice is of the opinion that the [lower

court] is demonstrably wrong in its application of accepted standards in deciding to issue the stay."

Coleman v. Paccar, Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers). And the "accepted

standards" for issuing a stay, id., are that a stay may be granted only when the movant has made (1) "a

strong showing that [it] is likely to succeed on the merits" and a showing that (2) it "will be irreparably

injured absent a stay," (3) a stay will not "substantially injure the other parties interested in the

proceeding," and (4) "the public interest" favors a stay. Nken v. Holder, 556 U.S. 418, 434 (2009)

I agree with the District Court and the applicants that the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium. See Utility Air Regulatory Group v. EPA, 573 U.S. 302, 324 (2014). Because the CDC plans to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional and more orderly distribution of the congressionally appropriated rental assistance funds, I vote at this time to deny the application to vacate the District Court's stay of its order. See Barnes v. E-Systems, Inc. Group Hospital Medical & Surgical Ins. Plan, 501 U. S. 1301, 1305 (1991) (Scalia, J., in chambers) (stay depends in part on balance of equities); Coleman v. Paccar Inc., 424 U.S. 1301, 1304 (1976) (Rehnquist, J., in chambers). In my view, clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.

Ala. Ass'n of Realtors, 141 S. Ct. at 2320-21 (Kavanaugh, J., concurring). With five justices agreeing

that the CDC lacked authority to issue an eviction moratorium, Justice Kavanaugh's controlling

opinion made clear that the CDC could not extend the moratorium beyond July 31 absent new

C. The President and His Advisors Concede That the CDC Lacks Authority to Extend the Eviction Moratorium

On July 29, 2021, the White House announced that the CDC would not extend the eviction

moratorium beyond July 31 because "the Supreme Court has made clear that this option is no longer

available. In June, when CDC extended the eviction moratorium until July 31st, the Supreme Court's

ruling stated that `clear and specific congressional authorization (via new legislation) would be

necessary for the CDC to extend the moratorium past July 31.'" The White House, Statement by White

House Press Secretary Jen Psaki on Biden-Harris Administration Eviction Prevention Efforts (July 29, 2021),

https://bit.ly/3jm0K17. The White House said that, "in light of the Supreme Court's ruling, you

know, the President is going to work with Congress to make that happen." The White House, Press

Briefing by Principal Deputy Press Secretary Karine Jean-Pierre (July 29, 2021), https://bit.ly/3ioiXvL; see also

The White House, Press Briefing by Principal Deputy Press Secretary Karine Jean-Pierre (July 30, 2021),

In response to this announcement from the White House, the House of Representatives

tried--and failed--to pass legislation extending the eviction moratorium on short notice. See 167

Cong. Rec. H4302-03 (July 30, 2021) (H.R. 4791 - Protecting Renters from Evictions Act of 2021); David

Shepardson, U.S. Lawmakers Fail to Renew Pandemic-Related Residential Eviction Ban, Reuters (Aug. 2,

After the House failed to pass legislation, the focus then shifted back to the White House

where, on July 30, the President announced that the eviction moratorium would expire the next day.

"As the eviction moratorium deadline approaches tomorrow, I call on all state and local governments

to take all possible steps to immediately disburse these funds given the imminent ending of the CDC

eviction moratorium." The White House, Statement by President Joe Biden on Eviction Prevention Efforts and

Then, after the eviction moratorium had expired, the White House reaffirmed on August 2

that CDC lacked authority to extend the moratorium. Although "the President would have strongly

supported a decision by the Centers for Disease Control and Prevention (CDC) to further extend its

eviction moratorium," "the Supreme Court declared on June 29th that the CDC could not grant such

an extension without `clear and specific congressional authorization (via new legislation).'" The White

House, Statement by Press Secretary Jen Psaki on Eviction Prevention Efforts (Aug. 2, 2021),

At a press briefing on the same day, the White House maintained its view that the CDC had

no authority to extend the moratorium "without clear and specific congressional authorization." The

White House, Press Briefing by Press Secretary Jen Psaki and White House American Rescue Plan Coordinator

and Senior Advisor to the President Gene Sperling (Aug. 2, 2021), https://bit.ly/3xoNzBt. "To date, the

CDC Director and her team have been unable to find legal authority, even for a more targeted eviction

moratorium that would focus just on counties with higher rates of COVID spread." Id.

During the same briefing, a Senior Advisor to the President stated that the CDC had tried--

and failed--to "find the legal authority" for an extension after "double, triple, quadruple" checking.

Id. He explained that the President "has asked the CDC to look at whether you could even do targeted

eviction moratorium--that just went to the counties that have higher rates--and they, as well, have

been unable to find the legal authority for even new, targeted eviction moratoriums." Id. He also

acknowledged that "the wording in the Supreme Court opinion was fairly, you know, clear that--they

said the CDC did not--could not grant such extension without, quote, `clear and specific

congressional authorization.'" Id. He described this as "a very difficult obstacle from the Supreme

As late as August 3, the White House stated that the CDC lacked authority to extend the

moratorium because "the Supreme Court came out and they--they put a stay on the moratorium and

made clear in their public writing, as Gene referenced yesterday, which is available to everybody, that

any further action would need legislative steps forward." The White House, Press Briefing by Press

Secretary Jen Psaki (Aug. 3, 2021), https://bit.ly/2WX9vY0. It also mentioned that "the third extension

of the moratorium that the CDC has--did since January would be the last extension." Id. And it

expressed "concerns about what the impact could be on the long-term capacity abilities--authorities,

Yet later that same day, August 3, 2021, the CDC relented to the political pressure from

Congress and the President by extending the eviction moratorium to October 3, 2021. CDC,

Temporary Halt in Residential Evictions in Communities with Substantial or High Levels of Community Transmission

of COVID-19 to Prevent the Further Spread of COVID-19 (Aug. 3, 2021), https://bit.ly/3fwOo53 ("CDC

Order"). The "new order" has the same effect as the moratorium vacated by this Court, except it only

applies "in counties with heightened levels of community transmission." Id. at 1. As the CDC

acknowledged in its order, as of August 1, "over 80% of the U.S. counties" were covered by the latest

extension. Id. at 5. And according to the President, the latest iteration of the eviction moratorium

"covers close to 90 percent of the American people who are renters." The White House, Remarks by

President Biden on Fighting the COVID-19 Pandemic (Aug. 3, 2021) https://bit.ly/3xszwea. Not

surprisingly, the CDC's order contains no discussion of the agency's authority to extend the

moratorium other than to note that the order was purportedly issued "under" Section 361 of the

In announcing the extension, the President conceded that "the courts" had already "made it

clear that the existing moratorium was not constitutional; it wouldn't stand." The White House,

Remarks by President Biden, supra. The President announced that the "bulk of the constitutional

scholarship says that it's not likely to pass constitutional muster." Id. Yet the President candidly

acknowledged that issuing the extension without legal authority was a delay tactic because, "by the

time it gets litigated, it will probably give some additional time while we're getting that $45 billion out

A district court "has inherent power to enforce its decrees and to make such orders as may be

necessary to render them effective." Horn & Hardart Co. v. Nat'l Rail Passenger Corp., 843 F.2d 546,

548 (D.C. Cir. 1988); see also In re Grand Jury Subpoena No. 7409, No. 18-41, 2018 WL 8334866, at *1-

2 (D.D.C. Oct. 5, 2018), aff'd, 749 F. App'x 1 (D.C. Cir. 2018) (collecting cases); Sierra Club v. McCarthy,

61 F. Supp. 3d 35, 39 (D.D.C. 2014) ("District courts have the authority to enforce the terms of their

mandates."). This can include injunctive relief to enforce an order. See, e.g., Pub. Citizen v. Carlin, 2 F.

Supp. 2d 18, 20 (D.D.C. 1998). A motion to enforce implicates "the interest of the judicial branch in

seeing that an unambiguous mandate is not blatantly disregarded by parties to a court proceeding."

Int'l Ladies' Garment Workers' Union v. Donovan, 733 F.2d 920, 922 (D.C. Cir. 1984). "The Court should

grant a motion to enforce if a `prevailing plaintiff demonstrates that a defendant has not complied

with a judgment entered against it.'" Sierra Club, 61 F. Supp. 3d at 39 (quoting Heartland Hosp. v.

A stay may be granted--and remain in place--only when the government has made (1) "a

strong showing that [it] is likely to succeed on the merits" and a showing that (2) it "will be irreparably

injured absent a stay," (3) a stay will not "substantially injure the other parties interested in the

proceeding," and (4) "the public interest" favors a stay. Nken, 556 U.S. at 434 (citation omitted). In

ruling on the government's stay motion, this Court applied the sliding-scale approach, whereby "a

movant may make up for a lower likelihood of success on the merits `with a strong showing as to the

other three factors, provided that the issue on appeal presents a `serious legal question' on the merits."

All parties agree that the "Supreme Court's ruling" blocked the CDC from extending the

moratorium because "`clear and specific congressional authorization (via new legislation) would be

necessary for the CDC to extend the moratorium past July 31.'" The White House, Statement by White

House Press Secretary Jen Psaki on Biden-Harris Administration Eviction Prevention Efforts, supra. There is no

question that the CDC's fourth extension of the moratorium conflicts with the Supreme Court's ruling

because Congress did not pass new legislation authorizing another extension. The only question is

what this Court should do about it. The Court should enforce the Supreme Court's ruling by vacating

the August 3 extension and the stay pending appeal to restore the status quo that a majority of the

I. The CDC's August 3 Extension of the Moratorium Conflicts With the Supreme Court's Ruling.

Justice Kavanaugh's controlling opinion was clear that the CDC could not extend the

moratorium past July 31 absent "clear and specific congressional authorization (via new legislation)."

Ala. Ass'n of Realtors, 141 S. Ct. at 2321 (Kavanaugh, J., concurring). The Executive Branch agrees.

As the White House explained, the Supreme Court "made clear" that an extension of the moratorium

was "no longer available. In June, when CDC extended the eviction moratorium until July 31st, the

Supreme Court's ruling stated that `clear and specific congressional authorization (via new legislation)

would be necessary for the CDC to extend the moratorium past July 31.'" The White House, Statement

by White House Press Secretary Jen Psaki on Biden-Harris Administration Eviction Prevention Efforts, supra. The

CDC's August 3 extension admittedly conflicts with the Supreme Court's ruling because Congress

II. The Court Should Clarify That the CDC's August 3 Extension of The Moratorium Is Covered by Its Vacatur Order Or Vacate the Extension Itself.

To enforce the Supreme Court's ruling, this Court should either clarify that its order vacating

the moratorium applies to the CDC's August 3 extension of the moratorium or, in the alternative,

vacate that extension. See Int'l Ladies' Garment Workers' Union, 733 F.2d at 923 (ordering district court

to enforce mandate after agency re-implemented the same rule that the D.C. Circuit vacated).

The August 3 extension is materially the same as the moratorium vacated by this Court and

reviewed by the Supreme Court. Like each prior iteration of the moratorium, the fourth extension

provides that property owners "shall not evict any covered person" during the effective date of the

moratorium--subject to criminal penalties. CDC Order at 1, 17. The CDC relied upon the same 11 Case 1:20-cv-03377-DLF Document 67 Filed 08/04/21 Page 12 of 16

source of authority--Section 361 of the Public Health Service Act--that this Court and a majority of

the Supreme Court agreed fails to provide authority for the eviction moratorium. Id. at 1. Although

the fourth extension "applies in U.S. counties experiencing substantial and high levels of community

transmission levels of SARS-CoV-2," id. at 12--which will cover at least 80% of counties and 90% of

renters--the geographic scope of the moratorium had no bearing on this Court's or the Supreme

Court's analysis of the CDC's statutory authority to issue the eviction moratorium. To view the

extension as a new order would require this Court "to exhibit a naivete from which ordinary citizens

are free." Dep't of Commerce v. New York, 139 S. Ct. 2551, 2575 (2019) (citation omitted). Because the

CDC extended the moratorium without new legislation, this Court should enforce the Supreme

Even if the CDC's August 3 extension did not conflict with the Supreme Court's ruling, this

Court should still clarify that the CDC's latest iteration of the moratorium is covered by the vacatur

order--or simply vacate it--for the same reasons it vacated the moratorium in May. This Court has

already concluded that the CDC lacks authority to issue or extend an eviction moratorium. ECF 54,

at 19-20. The latest extension of the moratorium is no more a lawful exercise of the CDC's authority

than the previous iterations, even if this one purports to drop the moratorium's coverage by a small

percentage. Especially in light of the recent statements by the White House, the government cannot

argue with a straight face that this latest action does not "exceed[] the authority provided in 361 of

Expedited relief vacating the fourth extension is particularly appropriate because the CDC

appears to have issued the August 3 extension in bad faith. The CDC admittedly issued the August 3

extension without legal authority. Over the course of five days, the White House repeatedly stated

that the CDC lacked the statutory authority to extend the moratorium because of the Supreme Court's

ruling. Yet the CDC issued the extension anyway, without even attempting to invoke a new source

of statutory authority. The CDC's August 3 extension of the moratorium rebuts the presumption

"that officials of the Executive Branch will adhere to the law as declared by the court." Comm. on

Judiciary of U.S. House of Representatives v. Miers, 542 F.3d 909, 911 (D.C. Cir. 2008).

Moreover, the CDC's explanation for the August 3 extension "is incongruent with" the

political reality that the CDC extended the moratorium to relieve the political pressure on the White

House and use litigation delays to buy more time to keep the unlawful order in place. Dep't of Commerce,

139 S. Ct. at 2575 (citation omitted). In fact, the President himself said as much about litigation

providing more time: "[B]y the time it gets litigated, it will probably give some additional time while

we're getting that $45 billion out to people who are, in fact, behind in the rent and don't have the

money." The White House, Remarks by President Biden, supra. But the inability to administer a rental

assistance program does not create statutory authority for the latest extension. The CDC's decision

appears to have been made for political reasons under intense political pressure--despite the apparent

claim that the agency acted for public health reasons. Indeed, the White House's announcement on

July 29 that the CDC would not--and could not lawfully--extend the eviction moratorium received

a massive blowback from Capitol Hill. Facing extraordinary political pressure, the CDC finally caved

by issuing the August 3 extension with minor tweaks but no new source of legal authority. The CDC's

August 3 extension may have solved a political problem in the short term, but has significantly

The Court should also vacate its May 14 stay order in light of the Supreme Court's ruling and

because, if this Court clarifies that the vacatur order covers this latest extension of the moratorium,

The Supreme Court's ruling compels vacatur of the stay pending appeal. Four Justices would

have vacated this Court's stay order outright, which means they had necessarily determined that

Plaintiffs' rights in this case, "which ... could and very likely would be reviewed [by the Supreme

Court] upon final disposition in the court of appeals, may be seriously and irreparably injured by the

stay" and that this Court was "demonstrably wrong in its application of accepted standards in deciding

to issue the stay." Coleman, 424 U.S. at 1304 (Rehnquist, J., in chambers). And in voting "at this time"

to deny the application to vacate this Court's stay, Justice Kavanaugh agreed with this "Court and the

applicants that the [CDC] exceeded its existing statutory authority by issuing a nationwide eviction

moratorium." Ala. Ass'n of Realtors, 141 S. Ct. at 2320-21 (Kavanaugh, J., concurring). He also did

not question that Plaintiffs' rights "may be seriously and irreparably injured by the stay." Coleman, 424

U.S. at 1304 (Rehnquist, J., in chambers). Instead, Justice Kavanaugh, noting that a "stay depends in

part on balance of equities," declined to vacate this Court's stay order solely "[b]ecause the CDC plans

to end the moratorium in only a few weeks, on July 31, and because those few weeks will allow for

additional and more orderly distribution of the congressionally appropriated rental assistance funds."

Ala. Ass'n of Realtors, 141 S. Ct. at 2321 (Kavanaugh, J., concurring). Because those conditions no

To the extent that the government urges this Court to conduct a new application of the stay

factors, it should decline the invitation. As the Supreme Court has repeatedly explained, it alone has

"the prerogative of overruling its own decisions." Rodriguez de Quijas v. Shearson/Am. Express, Inc., 490

U.S. 477, 484 (1989). Unless and until that occurs, this Court must "follow the case which directly

controls"--even in the face of changed circumstances. Id.; see Agostini v. Felton, 521 U.S. 203, 237-39

(1997) (emphasizing that lower courts may not conclude that even "a bona fide, significant change in

subsequent law" has, "by implication, overruled an earlier precedent" of the Supreme Court).

That is true whether or not a directive from the Supreme Court can be characterized as

formally binding. "Vertical stare decisis--both in letter and in spirit--is a critical aspect of our

hierarchical Judiciary headed by `one supreme Court,'" which is why the D.C. Circuit has held, for

example, "`carefully considered language of the Supreme Court, even if technically dictum, generally

must be treated as authoritative.'" Winslow v. FERC, 587 F.3d 1133, 1135 (D.C. Cir. 2009) (Kavanaugh,

J.). So just as "many lower courts quite understandably read" the Chief Justice's "South Bay

concurrence" to guide their resolution of constitutional challenges to COVID-19 restrictions, this

Court should a fortiori do the same with respect to Justice Kavanaugh's concurrence in the case here.

Roman Cath. Diocese of Brooklyn v. Cuomo, 141 S. Ct. 63, 71 (2020) (Gorsuch, J., concurring) (collecting

cases); see S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613-14 (2020) (Roberts, C.J.,

concurring in denial of application for injunctive relief); Hon. Trevor McFadden & Vetan Kapoor,

Symposium: The Precedential Effects of Shadow Docket Stays, SCOTUSblog (Oct. 28, 2020),

https://bit.ly/2WKelaP ("[W]hen a majority of the Supreme Court signals its views on the merits of

an issue, even in a brief shadow docket order, lower courts should either defer to the court's ruling or

justify a departure from that view."). If the government wants to relitigate the application of the stay

At a minimum, the Supreme Court's ruling has eliminated a key premise on which this Court's

stay order rested--namely, that the government, at that time, had "raised a `serious legal question on

the merits.'" ECF 61, at 7. It is now evident that five Justices agree with this Court that the CDC

"exceeded its existing statutory authority by issuing a nationwide eviction moratorium," Ala. Ass'n of

Realtors, 141 S. Ct. at 2320 (Kavanaugh, J., concurring), rendering any division in the lower courts

beside the point. Because the government now cannot even raise a serious question on the merits, a

stay pending appeal is no longer warranted, even under a sliding-scale approach.

The Court should enforce the Supreme Court's ruling by clarifying that this Court's vacatur

order covers the CDC's August 3 extension of the moratorium or setting aside that extension, vacating

this Court's May 14 order granting a stay pending appeal, and issue any other relief the Court deems

s/ Brett A. Shumate Brett A. Shumate (D.C. Bar No. 974673) Charlotte H. Taylor (D.C. Bar No. 1024658) Stephen J. Kenny (D.C. Bar No. 1027711) JONES DAY 51 Louisiana Avenue, N.W. Washington, D.C. 20001 Telephone: (202) 879-3939 Facsimile: (202) 626-1700

Well, this is embaraasing. I put the wrong text in the box. The OP isn't defendant oppoistion.

Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA

ALABAMA ASSOCIATION OF
REALTORS, et al.,
No. 20-cv-3377 (DLF)
Plaintiffs,

UNITED STATES DEPARTMENT OF
HEALTH AND HUMAN SERVICES, et al.,

Defendants.

DEFENDANTS' OPPOSITION TO PLAINTIFFS' EMERGENCY MOTION
TO ENFORCE THE SUPREME COURT'S RULING AND
TO VACATE THE STAY PENDING APPEAL

After the eviction moratorium that was the subject of this litigation expired, the Centers for

Disease Control and Prevention ("CDC") determined that the deteriorating public health situation

necessitated a new invocation of its authority--and responsibility--to protect public health.

Although the factual circumstances have changed and CDC's new order differs from the prior

eviction moratorium by targeting only areas of high or substantial transmission, Plaintiffs have filed

what they style as a motion to "enforce the Supreme Court's ruling and to vacate the stay pending

appeal." ECF No. 67 ("Mot.") at 1 (capitalization modified). The motion should be denied, as it rests

on the incorrect premise that the Supreme Court has issued a "ruling" in Plaintiffs' favor.

In earlier proceedings in this case, this Court vacated the prior eviction moratorium but stayed

enforcement of its order pending appeal. On appellate review, the D.C. Circuit refused to lift the stay,

and the Supreme Court denied Plaintiffs' emergency application for vacatur. Plaintiffs emphasize that

Justice Kavanaugh indicated in his concurrence that he agreed with their position that CDC lacked

authority to issue a nationwide eviction moratorium, and that there were four Justices who dissented
Case 1:20-cv-03377-DLF Document 69 Filed 08/06/21 Page 2 of 9

from the denial of Plaintiffs' application for relief. Under D.C. Circuit precedent, however, the votes

of dissenting Justices may not be combined with the vote of a concurring Justice to establish a binding

decision. See United States v. Epps, 707 F.3d 337, 348 (D.C. Cir. 2013); King v. Palmer, 950 F.2d 771, 781

(D.C. Cir. 1991) (en banc). Unless and until the Supreme Court rules otherwise, the decision of the

D.C. Circuit motions panel that rejected Plaintiffs' position remains the law of the case, at least as to

the factors governing whether any adverse judgment should be stayed. See Ala. Ass'n of Realtors v.

HHS, No. 21-5093, 2021 WL 2221646 (D.C. Cir. 2021); see generally Petties v. District of Columbia, 227

F.3d 469, 472 (D.C. Cir. 2000) ("Under this court's practice, a decision of the motions panel is the law

of the case.").

Until the Supreme Court acts, this Court should follow the D.C. Circuit, not predictions about

what the Supreme Court may decide. Such predictions are particularly problematic here. In Plaintiffs'

prior Supreme Court application, they offered a variety of bases for vacating the stay, including "the

downward trend in COVID-19 cases," "the effectiveness of vaccines," and CDC's guidance that

"vaccinated individuals may dispense with masks and social distancing indoors." Pls.' Emergency

App. For Vacatur (June 3, 2021), No. 20A169, at 4, https://go.usa.gov/xFNup. The Justices who

dissented from the denial of Plaintiffs' application did not explain their reasoning and may have agreed

with Plaintiffs' contention that, under the circumstances then present, the eviction moratorium was

not "necessary" to prevent the spread of COVID-19, which is a requirement for the exercise of CDC's

authority under 42 U.S.C. 264.

Since that time, the trajectory of the pandemic has changed dramatically as a result of the

highly contagious Delta variant. The seven-day average of daily new cases is now 89,976--nearly a

seven-fold increase over the rate when the Supreme Court ruled on June 29. See CDC COVID Data

Tracker, Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by

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State/Territory, https://go.usa.gov/xFRXv (last visited Aug. 6, 2021). And, based on mathematical

modeling, case trends will continue to increase over the coming weeks. See CDC COVID Data

Tracker, United States Forecasting, https://go.usa.gov/xFRFQ (last visited Aug. 6, 2021). New

evidence suggests that the Delta variant is more than twice as transmissible as the original strains of

SARS-CoV-2 circulating at the start of the pandemic; the Delta variant has demonstrated increased

levels of transmissibility among unvaccinated persons and might increase the risk of vaccine

breakthrough infections in the absence of other mitigation strategies. See CDC, About Variants of the

Virus that Causes COVID-19, https://go.usa.gov/xFRFG (last visited Aug. 6, 2021). Children

younger than age 12 are not yet eligible for vaccines.

CDC is thus once again recommending indoor masking for fully vaccinated individuals, see

CDC, Interim Public Health Recommendations for Fully Vaccinated People,

https://go.usa.gov/xFRX6 (last visited Aug. 6, 2021), as this Court has itself required, see D.D.C.

Standing Order 21-45, In re Reinstatement of Mask Requirement for All Individuals in Public and Non-Public

Areas of Courthouse (Jul. 30, 2021); businesses are delaying return-to-work orders, see, e.g., Lauren Hirsch,

Delays, More Masks and Mandatory Shots: Virus Surge Disrupts Office-Return Plans, N.Y. Times (July 23,

2021), https://nyti.ms/2VryVw5; and hospitalization rates in some states are approaching (if not

passing) their winter peaks, see CDC COVID Data Tracker, Prevalent Hospitalizations of Patients

with Confirmed COVID-19, https://go.usa.gov/xFnYg (last visited Aug. 6, 2021).

Faced with these rising case numbers, and instead of extending its previous "nationwide

eviction moratorium," Ala. Ass'n of Realtors v. HHS, 141 S. Ct. 2320, 2320 (2021) (Kavanaugh, J.,

concurring), CDC has issued a new moratorium that applies only in areas of substantial or high

transmission, thus exercising its authority to tailor a set of necessary actions to reduce the interstate

spread of communicable disease.

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Under these circumstances, this Court should not strike down the new order on the basis of

twenty-four hours of emergency briefing--particularly when Plaintiffs have not even filed a pleading

asserting claims against the new, narrower CDC order.

BACKGROUND

A. Prior Proceedings In This Court And The D.C. Circuit

Plaintiffs challenged a nationwide CDC eviction moratorium that most recently was extended

through July 31, 2021. See 86 Fed. Reg. 34,010 (June 28, 2021). This Court vacated that moratorium

for lack of statutory authority but stayed the judgment pending appeal. In issuing the stay, this Court

concluded that Defendants had made a strong showing that they would be irreparably injured absent

a stay. See ECF Nos. 60, 61. The Court recognized Defendants' "strong interest in controlling the

spread of COVID-19 and protecting public health," and noted that CDC's Order was "supported by

observational data and analyses that estimate that as many as 433,000 cases of COVID-19 and

thousands of deaths could be attributed to the lifting of state-based eviction moratoria." ECF No. 61

at 8; see also id. (citing mathematical model that estimates that "anywhere from 1,000 to 100,000 excess

cases per million population could be attributable to evictions depending on the eviction and infection

rates"). The Court also held that any potential financial loss to landlords was "outweighed by the

[Defendants'] weighty interest in protecting the public." Id. at 9.

A unanimous panel of the D.C. Circuit refused to vacate this Court's stay. The motions panel

concluded that Defendants had a strong likelihood of success on the merits and that the equities

favored a stay of this Court's judgment. See Ala. Ass'n of Realtors, 2021 WL 2221646, at *1-4. The

motions panel concluded that Defendants had demonstrated "that lifting the national moratorium will

exacerbate the significant public health risks identified by CDC because, even with increased

vaccinations, COVID-19 continues to spread and infect persons, and new variants are emerging." Id.

at *3 (alterations and internal quotation marks omitted). By contrast, Plaintiffs had failed to show a

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likelihood of irreparable injury. Id. at *3-4.

B. Prior Supreme Court Proceedings

The Supreme Court denied Plaintiffs' application to vacate the stay by a 5-4 vote. See Ala.

Ass'n of Realtors, 141 S. Ct. 2320. Concurring in the denial of the application, Justice Kavanaugh

indicated that he "agree[d] with the District Court and the applicants that the Centers for Disease

Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction

moratorium," but that he was voting to leave the stay in place "[b]ecause the CDC plans to end the

moratorium in only a few weeks, on July 31, and because those few weeks will allow for additional

and more orderly distribution of the congressionally appropriated rental assistance funds." Id. at 2320-

21 (Kavanaugh, J., concurring). He stated that, in his view, "clear and specific congressional

authorization (via new legislation) would be necessary for the CDC to extend the moratorium past

July 31." Id. at 2321.

Four Justices voted to grant Plaintiffs' application but did not provide an explanation for their

votes. Likewise, the four Justices who voted to deny Plaintiffs' application did not provide their

reasoning.

C. The Moratorium At Issue Here

On August 3, CDC issued a new, more targeted eviction moratorium "in order to respond to

recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of

the Delta variant." See Temporary Halt in Residential Evictions in Communities with Substantial or

High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-

19 at 1, https://go.usa.gov/xF5yV. This new order applies only in areas of substantial or high disease

transmission, and it applies through October 3, 2021. CDC explained that the new order "is intended

to target specific areas of the country where cases are rapidly increasing, which likely would be

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exacerbated by mass evictions." Id. at 1. As CDC explained, "[t]rends have dramatically worsened

since June 2021[,] and transmission is rapidly accelerating in the United States." Id. at 15. "A renewed

surge in cases in the United States began in early July 2021; case counts rose from 19,000 [new] cases

[per day] on July 1, 2021, to 103,000 cases on July 30, 2021," with cases expected to rise over the next

four weeks. Id. at 4.

CDC noted that the predominant "Delta variant has demonstrated increased levels of

transmissibility compared to other variants," and that "early evidence suggests that people who are

vaccinated and become infected with the Delta variant may transmit the virus to others." Id. at 5. It

further noted that emergency rental assistance had been slower to be distributed than hoped, with

"hundreds of thousands of applications for assistance . . . currently outstanding," and that additional

time would facilitate the distribution of additional assistance that could help keep people in their

homes, instead of congregate settings where the virus spreads easily. Id. at 8. Without a moratorium,

"a wave of evictions, on the order of hundreds of thousands, could occur in late summer and early

fall, exacerbating the spread of COVID-19 among the significant percentage of the population that

remains unvaccinated." Id. at 15.

ARGUMENT

Plaintiffs' motion provides no authority for this Court to enjoin CDC's August 3 order. The

D.C. Circuit motions panel addressed the issue of CDC's statutory authority to issue the prior

moratorium and concluded that Defendants had a strong likelihood of success on the merits; it further

concluded that the equities otherwise favored Defendants. Absent a contrary ruling from the Supreme

Court in a challenge to CDC's new moratorium, this Court should follow the D.C. Circuit motions

panel's determination that the moratorium should remain in effect. See Petties, 227 F.3d at 472.

Plaintiffs' motion rests on the incorrect premise that the Supreme Court issued an "order" or

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"ruling" in their favor. It did not. The Supreme Court denied their application for relief. See Ala. Ass'n

of Realtors, 141 S. Ct. at 2320 ("The application to vacate stay presented to THE CHIEF JUSTICE and

by him referred to the Court is denied."). And a Supreme Court "order" or "ruling" in Plaintiffs'

favor cannot be created by cobbling together the votes of dissenting Justices with a concurrence. The

D.C. Circuit has held that, when a lower court applies Marks v. United States, 430 U.S. 188 (1977), to

discern the decision of a fractured Court, it should consider only the votes of the Justices who

supported the judgment. See Epps, 707 F.3d at 348 ("This court has interpreted Marks to mean that

the narrowest opinion `must represent a common denominator of the Court's reasoning; it must

embody a position implicitly approved by at least five Justices who support the judgment.'" (quoting King,

950 at 781) (second emphasis added)).

The D.C. Circuit's determination that this Court's judgment should be stayed, in contrast, was

reasoned, and it was issued by a unanimous three-judge panel. The court concluded that CDC had

made "a strong showing that it is likely to succeed on the merits" because the eviction moratorium

falls within the plain text of 42 U.S.C. 264(a), has been recognized by Congress as within CDC's

authority, is consistent with the text and structure of section 264's other provisions, and is consistent

with Congress's constitutional authority. Ala. Ass'n of Realtors, 2021 WL 2221646, at *1-3. The court

further found that the other equitable factors weighed in favor of staying this Court's order pending

appeal. Id. at *3-4. Although the motions panel indicated that its merits analysis would not bind the

merits panel, the motions panel's ruling is "preclusive for all matters decided expressly or by necessary

implication," Taylor v. F.D.I.C., 132 F.3d 753, 761 (D.C. Cir. 1997), which included the determination

that the moratorium should be left in place pending further review. See Petties, 227 F.3d at 472; cf.

Sherley v. Sebelius, 689 F.3d 776, 782-83 (D.C. Cir. 2012) (even preliminary decision can be law of the

case where it reflects "[a] fully considered appellate ruling on an issue of law" (internal quotation marks

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omitted)). And "[d]istrict judges . . . are obligated to follow controlling precedent until either the D.C.

Circuit, sitting en banc, or the Supreme Court, overrules it." Vijender v. Wolf, No. 19-3337, 2020 WL

1935556, at *3 (D.D.C. Apr. 22, 2020) (alterations omitted) (quoting United States v. Torres, 115 F.3d

1033, 1036 (D.C. Cir. 1997)). Significantly, this Court "is not free to ignore binding circuit precedent

because of a possible inconsistency with an intervening decision of the Supreme Court." Nat'l Wildlife

Fed'n, Inc. v. U.S. Army Corps of Eng'rs, 314 F. Supp. 3d 126, 130 (D.D.C. 2018) (emphasis added).

"Unless and until the Court expressly abrogates [precedent,]" a district court "lacks authority to

conclude" that a more recent Supreme Court decision has, "by implication, overruled an earlier

precedent." Libertarian Nat'l Comm., Inc. v. Fed. Election Comm'n, 924 F.3d 533, 549 (D.C. Cir. 2019).

Finally, to the extent that this Court disagrees, Defendants respectfully request that this Court

enter an immediate administrative stay so that the Solicitor General may consider whether to seek

emergency relief from the D.C. Circuit or the Supreme Court. There is an exceptionally strong

equitable case for leaving the stay of this Court's judgment in place given recent trends in the

pandemic, and Plaintiffs will not be prejudiced by the short additional time that it would take for the

Supreme Court to interpret its own ruling. As the D.C. Circuit has observed, Plaintiffs "waited eleven

weeks before bringing their challenge to the [prior] moratorium," Ala. Ass'n of Realtors, 2021 WL

2221646, at *4, and every court to consider the question has concluded that the prior CDC eviction

moratorium did not cause landlords irreparable harm. See Defs.' Emergency Mot. for Stay Pending

Appeal, ECF No. 57, at 3 (collecting cases); see also Brown v. Azar, --- F.4th ----, 2021 WL 2944379

(11th Cir. July 14, 2021). Any injury to Plaintiffs caused by a temporary administrative stay is

outweighed by the risk of illness and mortality if the moratorium targeting areas of high or substantial

transmission is unnecessarily lifted at this moment when new cases are rapidly increasing due to the

highly contagious Delta variant.

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CONCLUSION

The Court should deny Plaintiffs' motion.

Dated: August 6, 2021 Respectfully submitted,

BRIAN M. BOYNTON
Acting Assistant Attorney General

ERIC BECKENHAUER
Assistant Director, Federal Programs Branch

/s/ Steven A. Myers
STEVEN A. MYERS
Senior Trial Counsel (NY Bar No. 4823043)
JOHN ROBINSON
Trial Attorney (DC Bar No. 1044072)
United States Department of Justice
Civil Division, Federal Programs Branch
1100 L Street, NW
Washington, DC 20005
Tel: (202) 305-8648
Fax: (202) 616-8470
E-mail: steven.a.myers@usdoj.gov

Counsel for Defendants

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