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Case Name Alabama Association of Realtors v. U.S. Dep't of Health and Human Services PR-DC-0019
Docket / Court 1:20-cv-03377 ( D.D.C. )
State/Territory District of Columbia
Case Type(s) Presidential/Gubernatorial Authority
Special Collection COVID-19 (novel coronavirus)
Case Summary
COVID-19 Summary: This civl action was filed on November 20, 2020 by two trade associations, three limited liability companies, and two individual landlords, seeking a judgment setting aside the CDC's eviction moratorium. The district court granted summary judgment for the plaintiffs but stayed ... read more >
COVID-19 Summary: This civl action was filed on November 20, 2020 by two trade associations, three limited liability companies, and two individual landlords, seeking a judgment setting aside the CDC's eviction moratorium. The district court granted summary judgment for the plaintiffs but stayed the case pending appeal on May 5, 2021. The Supreme Court vacated the stay on August 26, 2021. The case is now closed.


This is a case about the legality and constitutionality of the Centers for Disease Control and Prevention's (CDC) eviction moratorium, which became effective on September 4, 2020, and prohibited landlords from evicting certain tenants until at least December 31, 2020. On November, 20, 2020, two trade associations of residential real estate owners, three limited liability real estate companies, and two individuals involved in leasing residential property filed this lawsuit in the U.S. District Court for the District of Columbia. They sued the Department of Health and Human Services (HHS), the Department of Justice (DOJ), and the CDC. The plaintiffs sought an injunction setting aside the eviction moratorium, a judgment holding that Section 361(a) of the Public Health Service Act (PHSA) is unconstitutional, an injunction enjoining defendants from enforcing the eviction moratorium, and costs and attorneys' fees.

The plaintiffs asserted that the eviction moratorium violated the Administrative Procedure Act (APA) by failing to observe proper statutory procedures and by exceeding the CDC's statutory authority under Section 361 of the PHSA. The plaintiffs also argued that the eviction moratorium was an arbitrary and capricious agency action. Furthermore, the plaintiffs asserted that Section 361 of the PHSA violated the Article I Vesting Clause and the separation of powers and is therefore unconstitutional to the extent that it authorizes the eviction moratorium. The plaintiffs also argued that the eviction moratorium violated the APA by violating several of the plaintiffs' constitutional rights including the rights provided in the Fifth Amendment's Takings Clause, the Fifth Amendment's Due Process Clause, and the right of access to court for the redress of grievances found in the Article IV Privileges and Immunities Clause, the First Amendment's Petition Clause, the Fifth Amendment's Due Process Clause, and the Fourteenth Amendment's Equal Protection and Due Process Clauses.

The plaintiffs moved for expedited summary judgment on the same day the complaint was filed, November 20, 2020. The defendants opposed the plaintiffs' motion and also moved for summary judgment on December 21. On December 27, 2021, President Trump signed the Consolidated Appropriations Act, which extended the eviction moratorium to January 31, 2021. In response to the new law, the defendants moved to dismiss the plaintiffs' claims regarding the eviction moratorium's statutory violations and the violation of the nondelegation doctrine on January 6, 2021. On January 7, 2021, the plaintiffs moved for a temporary stay of the case, in which the government consented. The Court granted the motion on January 8. The CDC then extended the eviction moratorium twice, with the latter extension set to expire on June 30, 2021. On May 5, 2021, Judge Dabney L. Friedrich granted the plaintiffs' motion for expedited summary judgment and denied the defendants' motion for summary judgment and partial motion to dismiss. 2021 WL 1779282.

The Court set aside the eviction moratorium, finding that HHS and the CDC exceeded the authority provided for in Section 361 of the Public Health Service Act, which empowers the Secretary of HHS to make and enforce regulations necessary to prevent the introduction, transmission, or spread communicable diseases internationally or between states. In carrying out this power, the Secretary is authorized to provide for inspection, fumigation, disinfection, sanitation, pest extermination, the destruction of animals or articles, and other measures that may be necessary. The Secretary is also authorized to apprehend, examine, and detain individuals believed to be infected with a communicable disease, within certain limits. These powers have been delegated to the Director of the CDC by regulation. In determining whether HHS and the CDC exceeded their statutory authority, the Court applied a Chevron analysis. In analyzing the eviction moratorium under Chevron, the Court first looked to whether the text of the PHSA authorized a nationwide halt in evictions. The Court found that the CDC's interpretation of its authority was too broad and that the PHSA did not confer this authority because regulations pursuant to Section 361 must be directed toward specific targets found to be sources of infection. While the CDC argued that Congress ratified the agency's action when it extended the moratorium in the Consolidated Appropriations Act, the Court disagreed with this contention. The Court found that since Congress withdrew its support for the moratorium on January 31, 2021, the moratorium was no longer authorized by Congress and must be analyzed through the PHSA alone.

On the same day Judge Friedrich granted summary judgment for the plaintiffs, the defendants appealed to the District of Columbia Circuit and filed an emergency motion for stay pending appeal and an immediate administrative stay. On May 14, 2021, Judge Friedrich granted the government's motion. In deciding whether to grant the motion, the Court analyzed four factors: (1) likelihood of success on the merits; (2) certainty of irreparable harm; (3) whether a stay would substantially injure other parties with an interest in the proceeding; and (4) the public's interest. The Court found that the government was not likely to succeed on the merits of the case, for the same reasons the Court granted the plaintiffs' motion for summary judgment. However, the Court also stated that the failure to demonstrate a likelihood of success does not preclude a stay if there is a serious legal question remaining in the case. The Court noted that while a majority of courts that have addressed the lawfulness of the CDC's moratorium have found it unlawful, that at least two courts have disagreed. The Court also found that the government showed that irreparable harm would result in absence of a stay due to the connection between COVID-19 transmission and evictions. The Court found that a stay would likely cause financial injury to the plaintiffs but that some of their losses would be recoverable through state court proceedings. Regarding the fourth factor, the Court found that the public interest weighed in favor of a stay due to health reasons. After weighing these four factors, the Court exercised its discretion to grant the government's motion for stay.

On May 17, 2021, the plaintiffs notified the Court that they intended to move the DC Circuit to vacate the order granting the defendants' motion for stay pending appeal and also to file an application to vacate the stay in the U.S. Supreme Court. On June 2, 2021, the DC Circuit denied the plaintiffs' motion to vacate the district court's stay pending appeal. 2021 WL 2221646. The DC Circuit found that the district court did not abuse its discretion in granting the stay. The Court found that the government made a strong showing that it is likely to succeed on the merits because the moratorium fell within the plain text of Section 361(a) of the PHSA. The Court also noted that Congress has recognized HHS's authority to issue the moratorium by extending it in the Consolidated Appropriations Act. The Court found that the record did not show any likelihood for irreparable injury to the plaintiffs and that the moratorium was narrowly tailored because it only applied to certain tenants and preserved the tenant's obligation to pay all rent due.

The plaintiffs then appealed to the United States Supreme Court, requesting that the Court vacate the district court's stay. On June 29, 2021, the Supreme Court denied the plaintiffs' application. 141 S.Ct. 2320 (2021). Justices Thomas, Alito, Gorsuch, and Barrett would have granted the stay. Justice Kavanaugh, in a concurring opinion, stated that he agreed with the plaintiffs and the district court that the CDC exceeded its statutory authority by issuing the moratorium. However, Justice Kavanaugh voted against vacating the stay because he believed that allowing the moratorium to continue until July 31, when the most recent extension of the moratorium was set to expire, would allow for a more orderly distribution of rental assistance funds.

On August 3, 2021, after the previous moratorium had lapsed, the CDC issued a new eviction moratorium that only applied in U.S. counties experiencing high levels of transmission of COVID-19. The next day, the plaintiffs filed an emergency motion vacate the stay pending appeal in the district court. The district court denied the plaintiffs' motion on August 13, 2021, concluding that the D.C. Circuit's prior judgment affirming the district court's previous stay binds the district court. The district court relied on the law-of-the-case doctrine, which states that a court involved in the later phases of a lawsuit should not re-open questions previously decided by that court or a higher one. 2021 WL 3577367. The plaintiffs again appealed to the D.C. Circuit, which again denied the motion to vacate the stay on August 20, 2021. 2021 WL 3721431. The plaintiffs then filed another application to the U.S. Supreme Court to vacate the district court's stay.

On August 26, 2021, the Supreme Court granted the plaintiffs' application to vacate the stay. 2021 WL 378314. The Court, in a per curiam opinion, concluded that the plaintiffs were virtually certain to succeed on the merits of their argument that the CDC exceeded its authority. The Court stated that while Section 361 of the PHSA grants the CDC authority to take measures to control the spread of communicable diseases, the scope of the CDC's authority is limited by the types of measures mentioned in the section, which includes inspection, fumigation, disinfection, sanitation, pest extermination, and the destruction of contaminated animals and articles. The Court stated that this list shows that the CDC has authority to take measures that directly relate to preventing the interstate spread of disease, but that the agency is not authorized to use indirect measures such as the eviction moratorium. The Court noted that interpreting the PHSA to include the power to halt evictions would allow the CDC to exercise powers of vast economic and political significance and that if Congress desires to significantly alter the balance of power within the federalist system, it must do so in clear language. The Court also concluded that the balance of the equities do not justify depriving the plaintiffs of the district court's judgment, stating that as harm to the plaintiffs has increased over the course of the pandemic, that the government's interests have decreased.

On September 2, 2021, the defendants filed an unopposed motion to dismiss the case in the D.C. Circuit, which was granted the next day. 2021 WL 4057718.

The case is now closed.

Nicholas Gillan - 09/13/2021


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Issues and Causes of Action
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Issues
Benefit Source
CARES Act (Covid-related)
Constitutional Clause
Due Process: Procedural Due Process
Equal Protection
Petitions clause
Takings
Plaintiff Type
Private Plaintiff
Causes of Action Administrative Procedure Act, 5 U.S.C. ยงยง 551 et seq.
Ex parte Young (federal or state officials)
Defendant(s) Centers for Disease Control and Prevention
United States Department of Health and Human Services
United States Department of Justice
Plaintiff Description Two trade associations whose members own residential properties; two limited liability companies whose members own and manage residential properties; one limited liability company whose members manage residential properties; and two individuals who own and manage residential properties through the limited liability company plaintiffs
Class action status sought No
Class action status outcome Not sought
Filed Pro Se No
Prevailing Party Plaintiff
Public Int. Lawyer No
Nature of Relief Injunction / Injunctive-like Settlement
Source of Relief Litigation
Form of Settlement Voluntary Dismissal
Filed 11/20/2020
Case Closing Year 2021
Case Ongoing No
Additional Resources
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Court Docket(s)
D.D.C.
09/03/2021
1:20-cv-03377-DLF
PR-DC-0019-9000.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
General Documents
D.D.C.
11/20/2020
Complaint for Declaratory and Injunctive Relief [ECF# 1]
PR-DC-0019-0001.pdf | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
05/05/2021
Memorandum Opinion [ECF# 54] (2021 WL 1779282)
PR-DC-0019-0002.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
D.D.C.
05/14/2021
Memorandum Opinion [ECF# 61] (2021 WL 1946376)
PR-DC-0019-0003.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
06/02/2021
Order (2021 WL 2221646)
PR-DC-0019-0005.pdf | WESTLAW | Detail
Source: Westlaw
U.S. Supreme Court
06/29/2021
Opinion (141 S.Ct. 2320)
PR-DC-0019-0006.pdf | WESTLAW | Detail
Source: Westlaw
D.D.C.
08/13/2021
Memorandum Opinion and Order [ECF# 74] (2021 WL 3577367)
PR-DC-0019-0004.pdf | WESTLAW | Detail
Source: PACER [Public Access to Court Electronic Records]
U.S. Court of Appeals
08/20/2021
Order (2021 WL 3721431)
PR-DC-0019-0007.pdf | WESTLAW | Detail
Source: Westlaw
U.S. Supreme Court
08/26/2021
Opinion (2021 WL 3783142)
PR-DC-0019-0008.pdf | WESTLAW | Detail
Source: Westlaw
U.S. Court of Appeals
09/03/2021
Order (2021 WL 4057718)
PR-DC-0019-0009.pdf | WESTLAW | Detail
Source: Westlaw
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Judges Alito, Samuel A. Jr. (Third Circuit, SCOTUS) show/hide docs
PR-DC-0019-0006
Barrett, Amy Coney (Seventh Circuit, SCOTUS) show/hide docs
PR-DC-0019-0006
Friedrich, Dabney Langhorne (D.D.C.) show/hide docs
PR-DC-0019-0002 | PR-DC-0019-0003 | PR-DC-0019-0004 | PR-DC-0019-9000
Gorsuch, Neil M. (Tenth Circuit, SCOTUS) show/hide docs
PR-DC-0019-0006
Jackson, Ketanji Brown (D.D.C., D.C. Circuit) show/hide docs
PR-DC-0019-0007
Millett, Patricia Ann (D.C. Circuit) show/hide docs
PR-DC-0019-0005
Pillard, Cornelia Thayer Livingston (D.D.C., D.C. Circuit) show/hide docs
PR-DC-0019-0005 | PR-DC-0019-0007
Rao, Neomi Jehangir (D.C. Circuit) show/hide docs
PR-DC-0019-0007
Thomas, Clarence (D.C. Circuit, SCOTUS) show/hide docs
PR-DC-0019-0006
Wilkins, Robert Leon (D.D.C., D.C. Circuit) show/hide docs
PR-DC-0019-0005
Plaintiff's Lawyers Kenny, Stephen J. (District of Columbia) show/hide docs
PR-DC-0019-0001
Owen, Megan Lacy (District of Columbia) show/hide docs
PR-DC-0019-0001 | PR-DC-0019-9000
Patterson, Autumn Hamit (Texas) show/hide docs
PR-DC-0019-0001 | PR-DC-0019-9000
Shumate, Brett (District of Columbia) show/hide docs
PR-DC-0019-0001 | PR-DC-0019-9000
Taylor, Charlotte (District of Columbia) show/hide docs
PR-DC-0019-0001 | PR-DC-0019-9000
Defendant's Lawyers Myers, Steven Andrew (District of Columbia) show/hide docs
PR-DC-0019-9000
Netter, Brian D. (District of Columbia) show/hide docs
PR-DC-0019-9000
Robinson, John (District of Columbia) show/hide docs
PR-DC-0019-9000
Vigen, Leslie Cooper (District of Columbia) show/hide docs
PR-DC-0019-9000
Other Lawyers Wolman, Jay Marshall (Connecticut) show/hide docs
PR-DC-0019-9000

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