Litigation Update: Brown v. Becerra

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Dean Reuter:  Welcome to Teleforum, a podcast of The Federalist Society's practice groups. I’m Dean Reuter, Vice President, General Counsel, and Director of Practice Groups at The Federalist Society. For exclusive access to live recordings of practice group Teleforum calls, become a Federalist Society member today at fedsoc.org.

 

 

Evelyn Hildebrand:  Welcome to The Federalist Society's Teleforum conference call. This afternoon, May 14th, we discuss the litigation update on Brown v. Becerra. My name is Evelyn Hildebrand, and I'm an Associate Director of Practice Groups at The Federalist Society.

 

      As always, please note that all expressions of opinion are those of the experts on today's call.

      Today we are fortunate to have with us Mr. Caleb Kruckenberg. Mr. Mark Chenoweth will be moderating our discussion this afternoon. I will introduce our moderator who will then introduce our speaker. Mr. Mark Chenoweth is the Executive Director and General Counsel at New Civil Liberties Alliance, and he is an Executive Committee Member of The Federalist Society's Administrative Law and Regulation Practice Group.

      After our speaker gives his opening remarks, we will turn to you, the audience, for questions, so be thinking of those as we go along and have them in mind for when we get to that portion of the call.

With that, thank you for being with us today. Mark, the floor is yours.

Mark Chenoweth:  Thank you very much, Evelyn. And thank you again to The Federalist Society for having us on today for this teleforum and giving Caleb the opportunity to explain what happened at oral argument today and bring people up to speed on both the Brown v. Becerra case as well as some other cases that are pending that we'll get into near the end of his remarks.

      But before starting in on some questions for Caleb, let me introduce him further. Caleb is the first litigation counsel that NCLA hired when we opened shop in 2017. He came on board in the first half of 2018, and he has represented clients at the trial and appellate level in a variety of jurisdictions. He began as an Assistant District Attorney in the Appeals Bureau of the New York County District Attorney's office, then served as an Assistant Public Defender for the State of New Mexico, and then an Assistant Federal Public Defender for the District of New Mexico. Most recently, he worked as a criminal defense and civil rights attorney in Philadelphia, and as an advocate for criminal justice reform for NACDL, the National Association of Criminal Defense Lawyers.

      We are pleased at NCLA to have Caleb on board. And I want to, just before getting into this further, let people know that the lawsuit that Caleb filed that he's going to be talking about today, Brown v. Becerra, was the very first case filed against the CDC over the nationwide eviction moratorium.

      That moratorium was put into effect, I believe, on Friday, September 4th of last year. And on Tuesday, the 8th, Caleb filed this lawsuit, which means that he and some of his colleagues at NCLA worked the entirety of Labor Day weekend to get this lawsuit ready and to file it in order to try to do as much as possible to prevent property owners and housing providers from having to endure all that this moratorium as caused them to endure in terms of loss of livelihood, the inability to make ends meet, and the other irreparable harms that they have suffered.

      We're going to divide today's remarks into three sections. First, I'm going to ask Caleb to give a bit of background on the Brown v. Becerra case, which began life last September as Brown v. Azar. Then, I would like to ask him to fill us in on what happened at this morning's oral argument in the U.S. Court of Appeals for the Eleventh Circuit.

      And finally, I'll ask him a few questions about some of the other cases around the country, including the Tiger Lily case in the Sixth Circuit, the Alabama Realtors case in the District Court for the District of Columbia, and two new cases that Caleb is involved in, a class action lawsuit pending in the Northern District of Iowa against the CDC order, and that class action case is styled Mossman v. CDC, as well as a lawsuit in the Middle District of Tennessee against the Consumer Financial Protection Bureau, which has decided to get in on the holding up the landlords action, and that case is styled the Property Management Connection v. Uejio, if I'm pronouncing that correctly. Caleb, if not, please correct me.

      Then at about the 45 minute mark, we'll open it up to the audience for Q&A. And with that plan for proceeding spelled out, let's being with the Brown v. Becerra case. How did that case come about, Caleb, and where did things stand before today's oral argument?

Caleb Kruckenberg:  Well, thanks, Mark, for the introduction. As you mentioned, the Brown v. Becerra case started really in a hurry. I was in touch with our lead plaintiff, Mr. Brown, prior to the CDC's eviction moratorium order. For people that might not be aware, that order kind of came out of nowhere. It was issued by the CDC at the very beginning of September, and it was set to take effect the Friday it was issued. I was actually in contact with Mr. Brown before that discussing various state level eviction moratoria, and then as soon as the CDC acted, it became clear that there was something much bigger happening and much more concerning.

      So we filed our lawsuit almost immediately, and we sought a preliminary injunction. And really, the second we filed the lawsuit, the second we publicized it, I heard from housing providers just really across the country. People were calling me all over the place saying that they were concerned about it, that they were affected by it. And so, ultimately, we added a number of plaintiffs, including the National Apartment Association, which represents about 85,000 property owners nationwide.

      We moved forward in the Northern District of Georgia. The reason we picked that forum was that's where CDC is located. Mindful that we did not want to ask a federal district court to issue a nationwide injunction that was outside of its jurisdiction, we went to Atlanta where the CDC is located because we wanted a court that had jurisdiction over the CDC to tell them that the eviction moratorium order was unlawful. So we went to Atlanta --

Mark Chenoweth:  -- Sounds like the opposite of forum shopping.

Caleb Kruckenberg:  It is. We went to them. And then, unfortunately, the District Court in Georgia denied our preliminary injunction, and we appealed to the Eleventh Circuit.

Mark Chenoweth:  What was the statutory argument that you made to the Northern District of Georgia, and what was the constitutional argument that you made? Maybe you could spell those two out, just so everybody's on the same page.

Caleb Kruckenberg:  The statutory argument here is pretty simple. The CDC invoked a statute that was passed during World War II that says that the Surgeon General has certain authority to take emergency measures to prevent the transmission of communicable diseases, and then it lists the types of measure that the Surgeon General is entitled to take. It lists things like the inspection, fumigation, disinfection of contaminated articles and destruction of animals. And then there's a phrase at the end of this list that says, "and other measures as may be necessary."

      The CDC, when they issued the eviction moratorium, they said, "This statute gives us the power to do literally anything we can imagine as long as we decide it will help public health." And so under this notion of its own statutory authority, the agency said, "We can do a nationwide eviction moratorium because that's another measure."

Mark Chenoweth:  Had the CDC ever done an eviction moratorium before?

Caleb Kruckenberg:  Certainly not, and as far as we can tell, the CDC's actually never invoked this statute in the agency's history. This is the first time that they've taken action under this statute.

      Our argument is pretty simple. It's when Congress lists these examples, like pest extermination, that means something, and you have to read the other measures consistent with those other terms. Otherwise, there's no reason to list them. You don't list pest extermination and destruction of diseased articles if what you really mean is absolutely everything that you can imagine.

Mark Chenoweth:  So the things that are in the list are animals and articles, not people, and they're also things that are diseased, not things that are healthy. Is that a fair distinction?

Caleb Kruckenberg:  That's right. There are essentially those two characteristics that are possessed by every one of the listed examples.

Mark Chenoweth:  So your statutory argument is that because that's the only authority that CDC is basing its action on, that there is not statutory authority for it to take the action of a nationwide eviction moratorium?

Caleb Kruckenberg:  That's right. I think at a gut level, a lot of people understand this argument because when the CDC acted, I think a lot of people's reaction was like wait a minute. What is the CDC, the Centers for Disease Control, doing telling state courts that they are not allowed to operate? Because one thing, if you look at the eviction moratorium order, what it says is that it is a federal crime for someone to use state courts to evict a tenant for non-payment of rent.

Mark Chenoweth:  Are there any other examples in your research of a federal statute that purported to make it a federal crime to access state court remedies for anything?

Caleb Kruckenberg:  We've never seen anything like that since I've been involved in the litigation. And I know we've certainly been looking. And honestly, the CDC was pretty candid about this in the district court in our argument. They said that they'd never -- they're not aware of any instance where the government has taken this action before, either.

Mark Chenoweth:  So then what is the constitutional argument that you put before the court?

Caleb Kruckenberg:  Well, you sort of led into it. We all have a constitutional right to access our courts. The specific source of that right, it's from a variety of sources in the federal constitution, but it includes the First Amendment right to petition our grievances and also due process. The basic constitutional right is pretty simple. Once the government establishes a legal remedy, it cannot arbitrarily take it away from you and deprive you of a legal remedy to which you're entitled.

      One of the contexts we see this pretty commonly is when prisoners are deprived of their ability to sue over unconstitutional prison conditions or something like that. But it certainly applies here where we have a federal regulatory agency criminalizing the use of state court process for a property owner to retake possession of their property.

      Self-help evictions are illegal everywhere, and when you own a property and you have a tenant that refuses to pay and refuses to leave, the only legal way you can get your property back is through the eviction process. Now we have a federal agency that has purported to criminalize that process.

Mark Chenoweth:  Right a federal agency that's not even a housing agency because I believe that as part of the CARES Act, Congress itself has included a temporary eviction moratorium that expired July 31st of last year, but I believe that that moratorium was limited to federally subsidized housing.

Caleb Kruckenberg:  That's right. It seems like, if you look at the history of this particular eviction moratorium, there was an effort in Congress, I think, to take a more measured approach and to say, "Well, we're going to deal with federally backed loans because there is potentially an obvious source of federal authority here." But then the agency kind of took over the debate and they said, "We're going to just make this decision for all 50 states. We're basically going to overrule state decisions on what to do because of the pandemic."

      Since then, we've seen Congress take a real hands-off approach. I think this is kind of what we at NCLA talk about a lot. When an agency makes a decision like this, it takes the heat off of Congress. It keeps your elected representatives from actually making decisions and legislative choices, and you have an unaccountable agency just making a decision for everybody. Here, they're picking a winner, and they're picking a loser, and it just so happens that people who own property have to subsidize their tenants.

Mark Chenoweth:  So the Northern District of Georgia, Judge Boulee, ruled against you in October, and you were seeking a preliminary injunction. He ruled in favor of your clients on standing. What did he say about the other preliminary injunction factors like likelihood of success on the merits, irreparability of harm, and the balance of interests between your clients and the government? Was he buying any of that, or was he completely not on board with the argument at that time?

Caleb Kruckenberg:  Well, I think it's important to note that Judge Boulee did determine that all of my clients are suffering extraordinary financial hardship because of the eviction moratorium. He did acknowledge that. And in the judge's order, he wrote that he was accepting the fact that this order has really put the financial squeeze on my clients in what is really an unfair way.

      But Judge Boulee was not willing to say that there were irreparable harms. The reason he gave is twofold. He decided that the plaintiffs had failed to definitively prove that they'll never be able to recover the money from their tenants because one of the CDC's arguments all along has been that, eventually, when the courts reopen, housing providers will be able to get a judgement against the tenants for whatever amount of back rent they owe. Our response, of course, is --

Mark Chenoweth:  -- They will have saved up the $20,000 or $30,000 or $50,000 that they owe in back rent at that point in time and will just be able to pay that?

Caleb Kruckenberg:  Exactly. Unfortunately, Judge Boulee accepted the government's baseless assertion that somehow these tenants are going to be able to repay those massive debts at the end.

Mark Chenoweth:  They make a -- as part of getting the aid from -- excuse me, as part of taking advantage of the CDC order, they have to swear that they don't have any resources. Isn't that right?

Caleb Kruckenberg:  That's right. Actually, the mechanism for taking advantage of the eviction moratorium is that a tenant has to sign an affidavit, a form affidavit, that's prepared by CDC, and it has five points that you have to attest to. One of them is that you're making all reasonable efforts to pay rent. Another is that you are unable to pay anything at all towards your rent. And finally, another one is that if you are forced to pay anything at all toward your rent, you will immediately become homeless, or you will be homeless if you are evicted and you have nowhere else to go.

      Our argument is pretty simple. If you are swearing under oath that all those things are true, that you cannot pay a cent towards your rent today and for the duration of this moratorium, that is a good indication that, in the end when there is a large judgement against you for all the back rent, you're not going to be able to pay that. I think that makes -- it's kind of an obvious point, but unfortunately it's one that the judge did not accept. I think the judge was really unwilling to put any sort of scrutiny to the CDC's claims on that point.

Mark Chenoweth:  Anything to say about the likelihood of success on the merits or anything else about Judge Boulee's ruling?

Caleb Kruckenberg:  Just on the likelihood of success, I think if you read the decision, he gave a lot of credence to the sense of emergency that the CDC has been invoking throughout this litigation. Just to orient you, the decision was issued back in, I believe it was early November. And so circumstances were a little bit different with COVID-19, and I think that really permeates the opinion. There was a sense that the CDC really can do anything it wants to as long as it says it needs to because of an emergency.

Mark Chenoweth:  In an odd twist of fate, I was actually in Savannah, Georgia, on the day that the decision was handed down by Judge Boulee at a judicial conference where he ended up being the featured speaker. So I know exactly which day it came down in late October. But I didn't know it had come down, and he didn't say anything, and so that was sort of one of those funny coincidences.

      So you appealed the preliminary injunction to the Eleventh Circuit. I know you didn't -- not all of your arguments in the original complaint were part of the preliminary injunction, but you appealed -- the basic arguments that you've talked about so far were part of what you appealed to the Eleventh Circuit, if I understand correctly?

Caleb Kruckenberg:  That's right. Really, if you know anything about preliminary injunctions, there are other factors. There's the balance of interests, the interest of the public and the interests of our clients. But in a situation like this when we're dealing with a challenge to government action and we're basically saying the government has no ability to do anything, then we take it for granted and the courts kind of take it as a given. If the government doesn't have the power to do something, it's in the public interest to tell them that, to shut down unlawful government action.

      So we appealed and, as you mentioned, had oral argument this morning in the Eleventh Circuit. Unsurprisingly, the argument really focused on the two factors, the likelihood of success and irreparable harm. I think there were really strong statements from the court today about those two factors and really recognizing the harm.

      On the irreparability analysis, the court mentioned that declaration that tenants have to sign and went through it with the CDC, saying, "Well, isn't this a good indication that these tenants are never going to pay the property owners back?" And I don't think the CDC today in argument had a good answer for that. Really, it's been throughout this litigation, the CDC has just kind of washed its hands of the harm to the property owners and just said, "Well, it's necessary. It's a necessary expense for the pandemic."

Mark Chenoweth:  Again, that was Judge Branch who focused on that, if I’m remembering correctly from the argument.

Caleb Kruckenberg:  Yeah, I believe that's correct.

Mark Chenoweth:  Judge Grant seemed like she was focused a bit on whether the statute gives the agency the power it claims.

Caleb Kruckenberg:  That's right. Judge Grant, I think, was really focused on the text and focused on our argument that if you read the statute, these terms have to mean something. There's no reason to give an example of inspection or fumigation, etc., if that just means nothing. Judge Grant pushed back on the CDC. She said, "Well, under your reading of the statute, couldn't the CDC issue an order today that says that every public and private school in the nation must shut down indefinitely until we say otherwise?"

      The CDC's response -- they did the typical government thing where they hemmed and hawed and didn't really want to give an answer, but when pushed, they said, essentially, yes. They said, "We don't want to take any kind of interpretation that might deprive the agency of future power if we need to use it in another circumstance." I think that was a troubling response for the court, and it's certainly a troubling response to me, and that's kind of what we've been arguing all along.

Mark Chenoweth:  Judge Tjoflat kept asking why the CDC order prevented your clients from going into court—he said state or federal court—on a contract claim. What was your response to that line of questioning?

Caleb Kruckenberg:  Well, I think, unfortunately, Judge Tjoflat had a misunderstanding of what the order does and how the process actually works. The CDC order is a little strange. It's a little strange because, really in an unprecedented way, it says courts cannot operate --

Mark Chenoweth:  -- They've never seen anything like this before either, so it --

Caleb Kruckenberg:  -- Well, exactly, right --

Mark Chenoweth:  -- probably didn't expect it to operate the way it does.

Caleb Kruckenberg:  The order says courts can't operate. People are not allowed to use lawful means to evict tenants. I think Judge Tjoflat was under the impression that my clients could actually go to court and litigate the validity of the order in state court.

      Unfortunately, that's just not the case. What's happened and what's happened with all of my clients—and as I said, I've heard from people just all over the country—a lot of jurisdictions are shut down entirely. You're not allowed to file paperwork even to start an eviction lawsuit. Even the ones that are operating at some capacity, none of them will execute an eviction order, and that is the only way you can remove a tenant from your property. That's the only lawful way you can have someone be -- get your property back is with an executed eviction order from usually a sheriff. That is not happening at any state right now.

Mark Chenoweth:  So if you were to go to court, take your tenant to court on a contract claim and win, the court is not going to give you eviction as a remedy for that win. It's just going to say yes, in fact, you 're owed this back rent. So you're in basically the same position that you're in now except you've paid an attorney to get you this order that says you're owed the money that you're owned by someone who's judgment-proof.

Caleb Kruckenberg:  Exactly. And by someone who has sworn under oath that they can't pay you a cent.

Mark Chenoweth:  Well, and I assume that is why eviction is the traditional remedy in these sorts of situations as opposed to a contract law remedy because that's what actually gives the housing provider something useful in terms of relief.

Caleb Kruckenberg:  Right, and if you ever talk to someone who owns property and has had to go through the eviction process before, eviction's really the only tool because it's not surprising that people who are facing eviction, who haven't been able to pay their rent, they don't have resources. That's the whole point, and that is why states have made this choice of having evictions.

Mark Chenoweth:  But it's not automatic, right? If these courts are reopened and housing providers take tenants to courts, it's not as though the landlord-tenant judges rule in the landlord's favor 100 percent of the time. My understanding is a lot of times they'll try to broker some kind of compromise arrangement where someone will pay some amount of rent or some amount of back rent in order to stay put. But if there's a federal order telling tenants they don't have to pay anything, that removes all of the incentive for them to pay as well all of the leverage that the landlord-tenant judge might have to try to work a compromise.

Caleb Kruckenberg:  That's right. Every person I've talked to, they all tell me the same thing. "I don't want to evict anybody, and I always try to work with my tenants because eviction doesn't do me any good either. It doesn't do me a lot of good because I still have to go through this process. I just want them to pay rent." They're almost always willing to work with their tenants.

      But, as you said, without any kind of leverage, then there's no reason for a tenant to pay. Unfortunately, I've had clients report this to me more than a few times where they'll have a tenant who was making payments, or at least making partial payments, and then as soon as the nationwide eviction moratorium came down, they immediately stopped all payments because they didn't have to anymore. There was not risk for them. Unfortunately, I think there are a lot of tenants out there who've really used this to game the system and just stopped paying entirely.

Mark Chenoweth:  Though several other federal courts have ruled against the government in the interim between your October ruling from the Northern District of Georgia and the Eleventh Circuit oral argument today, did that appear to change the likelihood of success analysis that the panel was looking at today, or did they get into that very much?

Caleb Kruckenberg:  I think so. By my count, there are four and a half rulings in our favor. What I mean by that is so far, there have been four district courts who have held on a variety of grounds that the eviction moratorium order is invalid. Three of those dealt with the statutory argument that I mentioned earlier. One of them held that it was unlawful under the Commerce Clause.

      One of those cases, the case called Tiger Lily v. CDC—it came out of Memphis—the government filed an appeal and sought an injunction pending appeal against the district court's decision validating the moratorium. I guess I should point out, just while we're at it, all of those cases, with the exception of one I'll get to, were explicitly limited to the parties. So the rulings there affected only the parties to those litigation, those different efforts.

      But the Tiger Lily decision, the government appealed, and in seeking an injunction pending appeal, the Sixth Circuit issued a published order denying that, denying the injunction, and the reason was that the Sixth Circuit held that the statute just does not give the power to the CDC to issue this kind of moratorium.

      I think that factored very heavily in today's argument. I think that it was a well-reasoned decision. I think it was very convincing, and the court was very aware of it. There was reference by several members of the court today to the Tiger Lily decision. At one point, I believe it was Judge Branch said to the government, "Well, here you have the district court who ruled that you have the statutory authority, but then we have the Sixth Circuit saying otherwise. Who wins here?" The government's response was, "Well, we appealed in the Sixth Circuit too."

      I think that is -- and I think it's important what we're seeing is we're seeing sort of momentum. I think in the very beginning, particularly in our case, I think, like I said, there was this sense that this is early, this is temporary, we have to cut the CDC a break. I think as time is going by, courts are realizing that --

Mark Chenoweth:  -- And the moratoriums have been extended a couple of times.

Caleb Kruckenberg:  It's been extended four times now. It was originally supposed to end in December. It currently is set to end in June. I have every confidence that it's going to be extended further. I think finally the judges are coming around and saying, "We're not going to bless this kind of outrageous reading of a statute when this purported emergency is endless."

Mark Chenoweth:  What else did the government argue today, and how did the court respond to the rest of the government's argument?

Caleb Kruckenberg:  Well, I think what really dominated the conversation with the government was the irreparable harm point. The government kept going back to this really fanciful notion that it's really not so bad for the housing providers. It's really not so bad for my clients because Congress has allocated a certain amount of money that maybe someday will end up going towards my clients and help make them whole for what's happened to them, and so there's really nothing to see there.

      I don't think the court was buying it. I think there was -- I think it was Judge Grant who really called out the CDC on that argument by pointing out that in some respects, the district court had put us, put the plaintiffs in a really impossible position where we had to essentially prove the impossibility that they would ever receive back payments from the tenants, while also adopting this really speculative idea that someday Congress might make it all better when there's no evidence or really indication that that's going to happen. And I can just tell you, it's certainly not happened for any of our clients. And I don't think the court was buying it.

      As I mentioned earlier, I think a strong theme in the argument today was that the CDC was unwilling to articulate any sort of limitation on its authority. And I think any time you get up in court and you have the government saying, "Trust us." I wrote down the -- I think they said it would be -- they would extraordinarily careful, I believe, is what the government advocate said about the CDC's use of its unlimited power. I think when you're making that argument to a court, that's a bad place to be as an advocate. I think the court was appropriately concerned about that.

Mark Chenoweth:  Well, I won't ask you to speculate on the outcome based on the oral argument, but I will ask this. The CDC seemed to treat the June 30th deadline like it might not extend the moratorium. The counsel for the government said that decision won't be made until about two weeks before the deadline. I don't want to get in front of my client, the agency. Obviously, the court can take judicial notice of the fact that the pandemic is getting better, and vaccines are available now, and so forth. Of course the moratorium makes no distinction between vaccinated tenants and unvaccinated tenants, but the court didn't get into that.

      But how realistic is it that the deadline might not be extended? Does the CDC seem to be backing off its authority for the moratorium in the face of these adverse court decisions that you mentioned?

Caleb Kruckenberg:  No. I think the CDC is doubling down. At today's argument, for example, the CDC said, "Well, even though things are getting better, they could always get worse again, and we need to make sure we have the power to do this and anything else we need to do in the future." But also if you look at the administration, and you look at what they've said, in the most recent extension order, the CDC acknowledged that a lot of people are being vaccinated, that infection rates are down.

      And bizarrely, the CDC used that as a reason that they needed to extend the order. They said basically, "Well, things are getting better and if we don't have the CDC eviction order, things might get worse again." I don't see that as any sort of logical reaction to an actual improved circumstance. I see that as really a dogged commitment to an eviction moratorium no matter what.

      The other reason I think that we should expect an extension is the CFBP and the FTC recently issued new rules, and I know we're going to talk about it in a little bit, but they issued new rules telling people who seek to collect rent, whether that's a property owner or a housing attorney or really anyone who tries to collect back rent, according to those agencies, is required to disclose to the tenants, whether this is true or not, that they're entitled to protection under the eviction moratorium order.

      This was just what the agency has called an interim final rule, this emergency rule that sort of came out of nowhere. I think if the CFBP and the FTC are both staking out new territory now in the beginning of May, that the eviction moratorium -- I think they make these new disclosures about the eviction moratorium, I think that's a strong indication from this administration that they're committed to the moratorium, and they will probably extend it further.

Mark Chenoweth:  It doesn't sound like they're winding down. Let's briefly discuss some of the other pending cases. You mentioned the Tiger Lily case out of the Western District of Tennessee and now in the Sixth Circuit. I believe there's another case in the Northern District of Ohio. Is that the one that's -- is Skyworks the name of that case?

Caleb Kruckenberg:  Yeah.

Mark Chenoweth:  Okay. And where do those stand now?

Caleb Kruckenberg:  As we sit here today, all of those cases have had final judgments in the district court. For the Skyworks and Tiger Lily cases, the individual plaintiffs got judgements in their favor saying that the CDC eviction order does not apply only to them. The government has appealed in both cases. They've sought injunctions pending appeal. As I mentioned in the Tiger Lily case, the Sixth Circuit denied an injunction. The Sixth Circuit has not ruled in the Skyworks case, although they, I believe, are bound by the earlier opinion. And as I said, both of those cases are going up on the merits stage at appeals.

      Just about a week ago, the Alabama Association of Realtors case was decided in the District of Columbia in the federal district court here. And that case, the judge actually issued a nationwide injunction. However, the judge administratively stayed her own decision pending an appeal. She gave the party an opportunity to brief that, and as we stand now, we're waiting to see what's going to happen.

Mark Chenoweth:  I'm sorry, briefing the nationwide injunction piece in the district court, or it's going up to the D.C. Circuit now?

Caleb Kruckenberg:  Well, it's going up to the D.C. Circuit, but the parties have briefed whether or not there should be a stay pending the appeal with the district court. And the district court has not yet issued a decision. So as it stands right now, that decision is administratively stayed. Meanwhile, the CDC has appealed to the D.C. Circuit and also sought an injunction.

Mark Chenoweth:  And there too, I would think that there's at least an argument that the district court wouldn't have to issue a nationwide injunction because it had, much as the Northern District of Georgia has jurisdiction over the CDC headquarters, the HHS headquarters are in the District of Columbia, Department of Health and Human Services. I would think that that might give the D.C. District Court the ability to enjoin HHS and prevent the enforcement or extension of the moratorium, even without -- such an order might have nationwide effect, but it wouldn't necessarily have to be a nationwide injunction in the more traditional sense.

Caleb Kruckenberg:  I think that's right.

Mark Chenoweth:  You shouldn't call it traditional because it's not traditional to have a nationwide injunction, but you know what I mean.

Caleb Kruckenberg:  Right. I think that's right. And I also just said that the CDC really isn't arguing otherwise. Their arguments really have nothing to do with the notion that the district court couldn't order the agency to stop the eviction moratorium. Their arguments really just focus on their view that the statute gives them unlimited power to issue this kind of moratorium.

      The takeaway from all of this, from all the state of the litigation, is, as we sit here today, the eviction moratorium is effective except against just a handful of those plaintiffs in those cases. So we're really looking and we're hoping to get an order, in our case, from the Eleventh Circuit that has nationwide effect, that directs the CDC that it cannot use this eviction moratorium at all moving forward.

Mark Chenoweth:  We have about five minutes before we open the floor to questions from our audience. But let me ask you about a couple of other cases you're involved with that touch on the moratorium. First, you have a class action lawsuit. I know that your colleague John Vecchione is leading this effort, but I think that you've been following it as well. This is Mossman v. CDC. We alluded to this earlier, pending in the Northern District of Iowa. That’s a class action lawsuit. But how does that differ from the Brown v. Becerra case, and why would NCLA bring that lawsuit in addition to the lawsuit you've already brought that you argued in the Eleventh Circuit today?

Caleb Kruckenberg:  Well, part of that is just a response to the overwhelming outreach we have received from property owners across the country. As I mentioned, as soon as we filed the Brown case, my phone started ringing off the hook. I got emails every single day. I know my colleagues experienced the same thing.

      I've heard so many really just tragic stories about people who own a property or two. In a lot of cases, it's their retirement or it's -- this is their nest egg. And suddenly, they have a tenant who refuses to pay rent. They cannot evict them. They can't make any money, and they're not able to pay the mortgage on these properties. And people are going into foreclosure on their rental properties. I think because of all of these stories and all of these other people who wanted to join our cases and really do something about this, we organized a class action lawsuit.

      The lawsuit differs a little bit from the Brown v. Becerra case, if nothing else, just in posture. As I mentioned, we're still in a preliminary injunction posture in Becerra. And in our Mossman case, this is really an effort to fully raise some of the other, I think, important arguments that didn't take front and center in our argument in Brown.

      When you look at the CDC eviction order, there are so many constitutional problems. Obviously, one, as I mentioned, is the denial of the access to courts. But if you just look at it, you have an administrative agency, not even the federal -- not even Congress, trying to preempt state law. That is a really unique and, in my view, outrageous kind of an action. We have the government really commandeering state court process and trying to overrule states on how they govern themselves. So I think that this is an opportunity for us to raise some of those other arguments.

Mark Chenoweth:  Sort of Supremacy Clause and maybe Tenth Amendment related arguments?

Caleb Kruckenberg:  Right.

Mark Chenoweth:  And then I understand as well that the Mossman suit that there are two separate classes within the suit. Can you speak to that a little bit?

Caleb Kruckenberg:  Right. Well, the Brown suit, it really deals with the limited subset of places where the CDC eviction moratorium order applies because there's no state eviction moratorium. As you may be aware, a lot of states have their own local rules. New York City is one where they have a state moratorium. That doesn't mean that the state moratorium is constitutional or appropriate, but it's inappropriate for different reasons.

      We have two separate classes. One is for people who live in states without a state moratorium where they're affected only by the CDC order, and then we have another class for people who live in those other jurisdictions who are affected by their local moratoria. And they suffer different types of constitutional injuries.

Mark Chenoweth:  Let's make this the last question, then we'll open it up to Q&A, Evelyn. So if people what to start opting into the Q&A while Caleb is answering this last question, that might work real well, so we have some folks queued up as he's answering this final question. You mentioned earlier the CFPB, the Consumer Financial Protection Bureau, and I know you're suing them in the Middle District of Tennessee. What does the CFPB have to do with any of this, and why are you suing them?

Caleb Kruckenberg:  Well, I think the CFPB has a -- it should have about as much to do with this as the CDC, which is absolutely nothing, but unfortunately, that's not the case. As I mentioned, the CFPB issued a rule at the beginning of this month, or actually they noticed it the last week in April, and the rule said no matter where you live, if you are seeking to collect rent, you have to give this very specific disclosure to your tenants that says that they are eligible for protection under the CDC eviction moratorium.

      We brought the lawsuit in Nashville in part because of the Tiger Lily decision from this Sixth Circuit. Just as a reminder, we have a Sixth Circuit decision that’s published that says the CDC does not have the legal authority to issue an eviction moratorium, and yet, according to the CFPB, even in that circuit, even in light of that decision, property owners are still required to tell their tenants they can take advantage of the eviction moratorium --

Mark Chenoweth:  -- So they have to lie to their tenants?

Caleb Kruckenberg:  Well, and they're not allowed to tell them that it's been invalidated by the court. They have to lie about a protection that does not exist. And sort of outrageously --

Mark Chenoweth:  -- And that's in the name of a statute that doesn't allow landlords to mislead tenants.

Caleb Kruckenberg:  Right. And outrageously, the CFPB says that this is to enforce the Fair Debt Collection Practices Act to avoid false or misleading statements to tenants.

Mark Chenoweth:  Well, I wish I could say that this sort of behavior from the CFPB surprises me, but we've seen enough other outrageous things, and we have other lawsuits going against the CFPB. This is pretty much par for the course for that agency.

      Let's go ahead and open it up to our listeners and see what other questions they might have about the Brown v. Becerra case or some of the other things that you have been discussing thus far.

Evelyn Hildebrand:  Absolutely, and thank you for that great discussion. I will now hand the floor over to our first caller.

Caller 1:  I have a question about what's going on in Congress. Obviously, Congress could get rid of the statutory argument by adopting a moratorium on its own. Is there any movement afoot in Congress to do that? And if the Congress doesn't pass something like that, isn't that some evidence that the Congress is not going along with the continued moratorium?

Caleb Kruckenberg:  Well, I think that is sort of a complicated -- there's a sort of a complicated answer, and there's a simple answer. The simple answer is that Congress isn't doing anything right now. There's nothing pending in Congress, and there's really no discussion from Congress to address is one way or the other.

      What has happened in the past, though, is, as Mark mentioned, is over the summer, Congress had a limited eviction moratorium for federally secured loans. And then we did see a little line item in the appropriations bill that extended the CDC eviction moratorium for 30 days.

Mark Chenoweth:  At the tail end of December.

Caleb Kruckenberg:  Right, at the tail end of December, there was a paragraph in this multi-thousand page document that said the CDC eviction order is extended from January 1st to the end of that month. And that's it. That's really the only message we've ever had from Congress on this point.

      I think probably what this shows is that when an agency like the CDC sticks its nose in and is allowed to get away with it, is allowed to issue a moratorium like this and then use this authority, unfortunately, I think Congress is very happy to let them do that because it's a difficult decision politically. There are-real world consequences, as we know, to my clients, and it's a lot easier for Congress to just sort of let the agency do that, having to be willing to take the heat.

Mark Chenoweth:  Well, not to change topics, but we've seen that with your bump stock case as well. As soon as the ATF passed a regulation or issued a regulation purporting to make bump stocks unlawful, all of the action that was going on in Congress to adopt some sort of legislation along those lines disappeared.

Caleb Kruckenberg:  Right, and that's not even really a speculation here, either. If you go back to September, there were a number of bills that had been proposed by different members that dealt with an eviction moratorium, and it was almost always tied to housing assistance and federally secured loans, and those all disappeared as soon as the eviction moratorium was issued.

Mark Chenoweth:  We have another question, Evelyn?

Evelyn Hildebrand:  We do, yes. I'll now hand the floor over to you. Go head, caller.

Andrew Bennett:  Yes, thank you for the call. This is Andrew Bennett. I'm an attorney in the Atlanta, Georgia, market. I had two questions. Number one was with respect to the irreparable harm. Was there any effort to demonstrate that landlords are being harmed by the inability to manage their properties? Specifically, if you have these people that aren't following the rules, they're not obeying the covenants of the lease agreement, they will stop obeying other rules which could then cause these landlords to lose other good paying tenants or potentially negative reviews and damage to their reputation.

Caleb Kruckenberg:  Well, and I think that --

Mark Chenoweth:  -- I was going to see if he wanted to ask his second question as well, unless it's a follow up to that?

Andrew Bennett:  That was a little bit longer than I expected, so I'll have the first question first.

Caleb Kruckenberg:  So that's definitely something that I've heard from my clients, and we have definitely seen that. I think our presentation to the district court was to try to give them some sense of the reality of what's happening. Part of it is that these tenants are not paying, but part of it is that in a lot of cases when you have a tenant who is refusing to leave and refusing to pay rent, I've heard lots of people tell me that they damage the property, that there are other problems associated with it.

      It's kind of this twofold problem. On the one hand, you're not getting rent. You're not able to -- you still have to maintain the property, and you're not allowed to rent it to somebody else. But also, there's something even more fundamental about having a tenant that you're stuck with. You cannot get rid of them no matter what. You own the property, but you can't turn it over to anyone else. You have to give it to a specific person no matter what.

Mark Chenoweth:  The contract's up. A lot of our clients, the contract's up and they still can't evict them. But there's a complication too, right, Caleb, because even under the CDC order in theory, you can evict someone if they're breaking other pieces of the lease. It just can't be for failure to pay rent. So if they're damaging the property, for example, you're supposed to be able to evict on that basis, but what we've seen in all too many instances is that state courts are shutting down entirely, and they're not even hearing those sorts of complaints.

Caleb Kruckenberg:  That's right.

Andrew Bennett:  My second question is just generally, have the courts paid any credence to the way that the CDC order seems to go on ad infinitum? There's no end, and it's just -- well, there is an end, but then it gets extended. At least if the tenant files bankruptcy, there's an opportunity to get relief from the automatic stay if they fail to pay rent after they don't reject the lease. Or if you get a state court judgement or an eviction and the tenant wants to stay pending an appeal, there's usually a requirement to pay rent pending an appeal.

      Part of the problem with the CDC order is that you're just stuck with it until it ends. And I agree with you. I think it'll be extended until some courts come down and definitively tell the government that you absolutely cannot do this.

Caleb Kruckenberg:  I think that's exactly right. And that's something, I think, that the panel today in the argument recognized. There was -- I believe it was Judge Branch who pointed out to the CDC that, "Look, this has been extended four times. What kind of assurances do we have that it's not going to be extended again?" The CDC really -- as was typical, they didn't give a good answer, and they just kind of said, "Well, we'll make that decision later."

      I think that is weighing on the judges. It's starting to, and that's good. I'm glad to finally see that because, like you said, all of the normal practice is just upended, and my clients are just stuck in limbo with these debts that are mounting, and there's really nothing they can do.

Mark Chenoweth:  Well, and it's presumably if a property's foreclosed upon, even Judge Tjoflat would think that that's irreparable harm. You can't get that property back if it's foreclosed upon.

      Is there another question, Evelyn?

Evelyn Hildebrand:  We do, yes. We have two callers.

Caller 3:  Hi. Thanks for the great discussion. I was wondering, and you may have already touched on this, but can they evict for other reasons? I do understand that you are saying that they're not even willing to set hearing dates, or perhaps a sheriff won't serve. But I was wondering, as one of you had mentioned, if they're destroying property, or perhaps they're dealing drugs on the property, or other reasons unrelated to owing back rent, is it possible that they could even initiate in the courts, like file, and perhaps that could possibly urge tenants to leave? Or is that just impossible at this point because there really is no recourse? Thank you.

Caleb Kruckenberg:  It depends on where you are. I think part of what happened with the CDC order is state housing courts and state courts in general were taken by surprise, just like everybody else. The responses have been quite varied. Some jurisdictions still will not let anyone file paperwork. They are reading the order very broadly, and they're saying, essentially, "We're closed, end of story, no matter what. You cannot seek an eviction. You can't even file the papers. We're not going to entertain it, period."

      Some courts have read the order more narrowly, and some courts are willing to allow evictions to process to a point where they'll issue a final judgement, but they won't allow it to be executed. So you get an order, but you can't actually get an eviction. And some courts are allowing evictions on other bases, like damage or criminal conduct or something like that.

      But really what we're seeing is a really wide patch work. Part of that, I think, is the CDC, when they drafted the order, when they issued it, didn't really understand how the process works and didn't have a good appreciation for the 50 states and their different roles and their different processes, and so it kind of took everyone by surprise.

Mark Chenoweth:  Imagine that. The agency in charge of disease prevention doesn't know anything about housing policy. I'm shocked.

Caleb Kruckenberg:  My clients have all reported me, pretty universally, it's been a mess and some courts have figured it out better than others. But I don't think anybody's really happy with the state of affairs.

Mark Chenoweth:  The only thing I'd add to that, Caleb, is that the New Civil Liberties Alliance got involved in a case in Kansas City where the American Civil Liberties Union had sued the court in Kansas City, Missouri, because the court had read the CDC order and had decided that nothing prevented people from filing suit in Kansas City. So it was continuing to process eviction lawsuits. They said, "Look, we are not going to have the sheriffs evict anybody because we read the order to prevent that, but we're going to allow these things to continue to process." So you have that at one end of the spectrum.

      The CDC actually jumped into that case to agree with what the Kansas City court was doing. And yet, other courts haven't gotten that message across the country. And we're still seeing the majority of courts that our clients are having to deal with not taking the same stance that the court in Kansas City has taken, much to the chagrin of the ACLU in that case.

Caller 3:  Thank you for your response. If you don't mind, if I can just kind of piggyback off that, I was just thinking what if there was, say, a sale of the property? Could they then evict under those circumstances? Or are you saying that basically everything is at a stop?

Caleb Kruckenberg:  Well, one of the most perverse aspects of the CDC eviction order is that it does not apply to foreclosures. So that is the one exception. If a property owner is unable to pay their own mortgage because their tenant has stopped paying rent and the bank forecloses on the property, then the tenant will be evicted. The CDC order doesn't apply there.

      But that's the only exception other than, as you mentioned, evictions for criminal activity and damage to the property. So the way the CDC structured it is banks are allowed to retake your house if you can't pay your mortgage, and again, this is a problem for the property owner, but that's it. They are allowed to evict someone, but no one else is.

Mark Chenoweth:  Do we have time for one more question, Evelyn?

Evelyn Hildebrand:  I think we do, yes. If you don't mind, we'll just move to our final caller in the queue, and then we'll close out right after that.

Leigh O'Connor (sp):  Hi. Thanks so much for this discussion. This is Leigh O'Conner. Caleb, your last answer anticipated a little bit my question. I'm not advocating this, but I do wonder what is the basis for distinguishing tenants who can't pay their rent from people who can't make their mortgage payments? Why did CDC make a distinction?

Caleb Kruckenberg:  Well, CDC didn't explain its distinction, and so we can only guess. There's not a logical reason to make that distinction, and the CDC has argued all along, they said, "Look, if anyone is removed from a house, it's a danger to public health and safety because that person might become exposed to coronavirus in a congregate setting after they leave the home." But obviously, that would be the same case if they're evicted for causing damage to a property or if they're evicted because the homeowner can't pay the mortgage.

      I think if nothing else, it's a policy decision the agency has made for whatever reason, but it really demonstrates --

Leigh O'Connor:  -- Or they just didn't think of it.

Caleb Kruckenberg:  Or they didn't think of it. I think that is a completely valid suggestion because, obviously, this is not their area of expertise. But it does show how poorly thought out and how inconsistent the order is.

Leigh O'Connor:  Right. Thanks so much.

Evelyn Hildebrand:  Great. Thank you. As we've reached the hour, I will hand the floor over to Mark just to close us out, and we will finish right after that.

Mark Chenoweth:  I was just going to say thank you again to The Federalist Society and Evelyn, to you, for hosting this discussion today. Hopefully, folks were able to get caught up on where things stand in the Brown v. Becerra case as well as several of the other cases having to do with the nationwide eviction moratorium.

      If folks want to go to our website, NCLAlegal.org, they can continue to follow these various cases. We have case landing pages for all of the cases, I think, all the cases that were mentioned today because we have filed amicus briefs in a number of the cases where we haven't been involved. Maybe the Alabama Association of Realtors case is the exception there, but certainly, we invite people to go to the website, NCLAlegal.org, to learn more information if they're interested.

      Caleb, thank you for your presentation today and for fighting the good fight on behalf of liberty.

Evelyn Hildebrand:  Thank you both. On behalf of The Federalist Society, I want to thank our experts for the benefit of their valuable time and expertise today, and I want to thank our audience for calling in and participating. We welcome listener feedback by email at info@ fedsoc.org. As always, keep an eye on our website and your emails for announcements about upcoming teleforum calls and virtual events.

      This coming week, we have our Executive Branch Review. You can register for that on our website. It's four days of multiple presentations and some pretty fantastic speakers coming up, so check our website for that information. Thank you all for joining us today. We are adjourned. 

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Dean Reuter:  Thank you for listening to this episode of Teleforum, a podcast of The Federalist Society’s Practice Groups. For more information about The Federalist Society, the practice groups, and to become a Federalist Society member, please visit our website at fedsoc.org.