The Corner

Law & the Courts

Judge Friedrich Leaves the CDC Eviction Moratorium to the DC Circuit

The Biden Administration is pushing a CDC eviction moratorium into the teeth of five current Justices of the Supreme Court concluding that the prior (and for all practical purposes identical) moratorium was beyond the power of the CDC to order. Justice Brett Kavanaugh’s decision not to join the other four in entering an order against the moratorium, however, left technically in place the DC Circuit’s prior ruling favoring the moratorium. I noted after listening to Monday’s argument that Judge Dabney Friedrich, a Trump appointee who ruled against the moratorium the first time around, was concerned that this tied her hands. She ruled today that it did. The case will move on to the DC Circuit, which may again be not only sympathetic to the administration’s flimsy legal arguments but also uninterested in hurrying the case along, unless the challengers can get the Supreme Court to act peremptorily (something it is rarely inclined to do).

This is why Kavanaugh should just have done his job the first time instead of trusting the integrity of the Biden Administration.

UPDATE: Here is the judge’s opinion. Judge Friedrich concluded that the new moratorium was the same as the old one:

The current moratorium applies only “in U.S. counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2 as defined by
CDC”…a category that presently includes roughly ninety-one percent of U.S. counties…In contrast, the previous moratorium applied in all U.S. counties….Apart from these differences, the moratoria are virtually identical—the remainder of their definitions are the same, their exceptions are the same, their applicability provisions are the same, and the criminal penalties for violating those provisions are the same The minor differences between the current and previous moratoria do not exempt the former from this Court’s order. For obvious reasons, extending the effective dates of a vacated order does not evade the effects of the vacatur. Indeed, consistent with that principle, both the government and the Supreme Court already considered one extension of the moratorium in pari materia with the version that this Court addressed in May. …Further, although the CDC has excluded some counties from the latest moratorium’s reach, the policy remains effective nationwide, shares the same structure and design as its predecessors, provides continuous coverage with them, and purports to rest on the same statutory authority. In the analogous context of the voluntary cessation doctrine, courts frown upon attempts to moot out legal challenges by repealing one rule and replacing it with a policy that is fundamentally similar. [Citations omitted]

As a result, Judge Friedrich held, the new moratorium was properly back before the same judge in the same case – but also that “the Court’s hands are tied:”

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. Four Supreme Court Justices voted to vacate the stay, “an action which would have been improbable if not impossible had the government, as the stay applicant, . . . made a strong showing that it was likely to succeed on the merits.” CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 229 (4th Cir. 2020) (Wilkinson, J.). And while Justice Kavanaugh voted to uphold the stay, he squarely concluded “the Centers for Disease Control and Prevention exceeded its existing statutory authority by issuing a nationwide eviction moratorium.” Ala. Ass’n of Realtors, 141 S. Ct. at 2320 (Kavanaugh, J., concurring). Other decisions from the federal courts of appeals further suggest that the government is unlikely to prevail…But the Court’s hands are tied. 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.

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