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Federal judge wary of 'gamesmanship' in new CDC evictions pause

A federal judge in Washington expressed skepticism Monday over the extension of a federal moratorium on evictions meant to help prevent people from losing their homes as COVID-19 infection surge.

The moratorium is on its fourth extension, this time after many advised President Joe Biden that another extension wouldn’t pass constitutional muster. 

“Given that this order is almost identical to the CDC’s earlier order, it’s really hard in light of the Supreme Court’s decision ... to conclude that there’s not a degree of gamesmanship going on,” U.S. District Judge Dabney Friedrich told a Justice Department attorney at a hearing on Monday. 

The original moratorium was imposed by Congress in September of last year, but the Centers for Disease Control and Prevention issued an extension when it expired, citing authority to do so under the Public Health Service Act. 

This soon prompted a legal challenge, however, from a group led by the Alabama Association of Realtors, and Friedrich, a Trump appointee, ruled the extension unlawful. 

On appeal, the D.C. Circuit reversed, and a 5-4 Supreme Court split kept the moratorium in place. Justice Brett Kavanaugh explained in a concurring opinion that he also felt that the CDC exceeded its legal authority but that he sided with the majority so that Congress would have time to create legislation to extend it past its July 31 deadline.

Brett Shumate, a Jones Day lawyer representing the group of landlords, emphasized this history at Monday's hearing in Washington.

“Justice Kavanaugh said he voted in favor of the stay at that time, but he wouldn’t support a stay after July 31,” Shumate said. “After that date, he indicated quite clearly that he would vote with the dissenters at the Supreme Court.”

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But Justice Department attorney Brian Netter noted that the ground shifts continually as the country fights to eradicate COVID-19.

“We're in a new chapter of this pandemic," Netter said during the Monday hearing. “And the new or extended moratorium is a reflection of the updated public health situation.”

The new eviction moratorium is more targeted, and only applies to counties that have a high level of COVID transmission.

Netter referenced a Friday statement made by White House press secretary Jen Psaki that Biden would not have supported the new moratorium if he didn’t feel confident about the legal backing. 

“We believe that this is a proper use of a lawful authority to protect the public health, and the Supreme Court has not ruled otherwise,” Psaki said. 

Brett Shumate said that the extension conflicts with the Supreme Court and is the result of the White House caving to political pressure. 

“It is clear that the majority of the Supreme Court would not be in favor,” Shumate told Friedrich. 

The group of landlords asked Friedrich to immediately halt the new moratorium on Wednesday. On Friday, the government fired back and asked Friedrich to instead pause the case

Netter said that, because the Supreme Court didn’t directly rule against the previous moratorium, the district court shouldn’t try to predict how they would rule on this one. 

“There's good reason why district courts are not asked to speculate about how the Supreme Court will rule on an issue,” Netter said. “Justice Kavanaugh’s concurring opinion is not governing and it does not reflect the ruling of the Supreme Court.”

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Though Friedrich wasn’t sold on the legal backing for Biden’s extension, she said that she felt that her hands were tied based on the appellate court decision. 

“Tell me why my hands are not tied in light of the D.C. Circuit's opinion?" Friedrich asked Shumate. 

Shumate responded that her hands are not tied because it was a motions panel decision on an emergency motion for preliminary relief, and their ruling is not binding on future motions panels. 

“I’m having a hard time with that argument because the D.C. Circuit considered on appeal the same issue that I’m facing now,” Friedrich said. 

Friedrich said she would rule on the moratorium’s newest challenge in the near future.

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The new eviction moratorium by the CDC is more targeted than previous orders, and only applies to counties that have a high level of COVID transmission.

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