Federal judge rejects challenge to federal eviction moratorium

The federal eviction moratorium survived its latest challenge Friday, but the federal judge who declined to intervene said the Supreme Court will likely find the government's latest extension illegal. 

“The law of the case doctrine prevents the court from lifting the stay,” U.S. District Judge Dabney Friedrich wrote, largely keeping to the analysis she discussed during oral arguments Monday.

At the hearing, the Trump appointee had used the word "gamesmanship" to describe the latest extension of the eviction moratorium made by the Centers for Disease Control and Prevention while a challenge was already underway. Friedrich had also said, however, that the D.C. Circuit’s decision to keep the moratorium in place constrained her. 

“This Court lacks the ‘power or authority’ to reach the opposite conclusion of the D.C. Circuit on the same issues, in the same emergency posture, and in the same case,” Friedrich wrote Friday. 

Congress imposed the original moratorium in September of last year to prevent landlords from kicking out tenants who can’t pay rent because of temporary financial hardship stemming from the COVID-19 pandemic. After that moratorium expired, the CDC issued an extension, citing authority to do so under the Public Health Service Act.

Friedrich had already ruled the extension unlawful, but the D.C. Circuit ruled otherwise, and the Supreme Court kept that ruling in place on June 29.

Justice Brett Kavanaugh explained at the time in a concurring opinion that he only voted with the majority so that Congress would have time to create legislation to extend the moratorium past its July 31 deadline.

When the CDC issued a fourth extension of the moratorium on Aug. 3, the landlords returned to the court for relief. 

“Justice Kavanaugh said he voted in favor of the stay at that time, but he wouldn’t support a stay after July 31,” Brett Shumate, a Jones Day lawyer representing the Alabama Association of Realtors said during oral arguments. “After that date, he indicated quite clearly that he would vote with the dissenters at the Supreme Court.”

The government responded that Kavanaugh’s view does not speak for the dissenting justices. 

For Friedrich, the writing is on the wall.

“It is true that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits,” Friedrich wrote. “Other decisions from the federal courts of appeals further suggest that the government is unlikely to prevail.”

Friedrich said that the landlords will need to turn to the circuit court to get the moratorium blocked. 

“The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law,” Friedrich said. “Absent the D.C. Circuit’s judgment, this court would vacate the stay. But the court’s hands are tied.”

The moratorium is set to remain intact until early October. 

Friedrich's ruling came after the Supreme Court issued an injunction late Thursday night against New York's separate moratorium on pandemic evictions, which is called the CEEFPA or Covid Emergency Eviction and Foreclosure Prevention Act.

"If a tenant self-certifies financial hardship, Part A of CEEFPA generally precludes a landlord from contesting that certification and denies the landlord a hearing," the unsigned order states. "This scheme violates the court’s longstanding teaching that ordinarily 'no man can be a judge in his own case' consistent with the Due Process Clause."

Justices Stephen Breyer, Sonia Sotomayor and Elena Kagan dissented, noting that "the challenged law will expire in less than three weeks."