U.S. Supreme Court

DC Circuit keeps latest eviction moratorium in place; Supreme Court is asked to intervene

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Real-estate groups are asking the U.S. Supreme Court to block the latest eviction moratorium by the Centers for Disease Control and Prevention after a federal appeals court declined to do so.

The emergency application filed Friday urges the Supreme Court to step in to prevent “gamesmanship” by the executive branch and the CDC, which extended the moratorium on Aug. 3 after Congress failed to act. The brief filed by Jones Day cited comments by Joe Biden, who said the latest extension was unlikely to pass constitutional muster, but litigation would buy more time to distribute rent relief payments.

Among the publications with coverage are SCOTUSblog, Politico, the National Law Journal and Courthouse News Service.

The groups challenging the moratorium include the Alabama Association of Realtors and the Georgia Association of Realtors.

The groups sought Supreme Court intervention on the same day that the U.S. Court of Appeals for the D.C. Circuit issued a brief order that kept the new moratorium in place.

The latest moratorium extension applies only in counties experiencing high levels of coronavirus transmission. U.S. District Judge Dabney Friedrich had refused to block the new moratorium on Aug. 13, even as she expressed doubt it would survive on appeal.

Friedrich said she was bound by previous decisions by the U.S. Court of Appeals for the D.C. Circuit and the U.S. Supreme Court that allowed a previous federal eviction moratorium to remain in place pending an appeal on the merits.

But Friedrich noted the Supreme Court had kept the previous moratorium in place with five votes.

Justice Brett Kavanaugh, who provided the critical fifth vote, had said he believed the moratorium should continue until its July 31 expiration to allow for continued distribution of rental assistance funds. But he indicated he thought the CDC had exceeded its statutory authority by imposing the moratorium.

Jones Day lawyers cited Kavanaugh’s concurring opinion in its brief asking the U.S. Supreme Court to act. “As five members of this court indicated less than two months ago, Congress never gave the CDC the staggering amount of power it claims,” the brief says.

When issuing the moratorium, the brief says, the CDC had relied on a rarely used 1944 statute “whose domain has previously been limited to matters such as the sale of baby turtles.”

The case is Alabama Association of Realtors v. U.S. Department of Health and Human Services.

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