Litigation Update: Eviction Moratoria

Litigation Practice Group Teleforum

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On September 1, 2020, the U.S. Centers for Disease Control and Prevention took a step into nationwide housing policy, and issued a nationwide ban on evictions. With the order, the federal agency invoked a little-known WWII-era statute that empowered the agency to “make and enforce such regulations” that “are necessary to prevent the introduction, transmission, or spread of communicable diseases from foreign countries into the States or possessions, or from one State or possession into any other State or possession.” The agency asserted that evictions presented a unique and unacceptable danger to the public in light of Covid-19.

CDC’s order was challenged almost immediately by a variety of public interest groups on a variety of statutory and constitutional grounds. At the heart of these challenges was an objection to the agency’s determination that property owners could be forced to turn over their real property to tenants who refused to pay rent.

The order was, in months-long increments, in existence for most of the past year. Meanwhile, several district courts and the Sixth Circuit invalidated the moratorium, but only with respect to individual litigants. After one trip to the Supreme Court, another extension, and a final stop back at the Supreme Court, the moratorium ended. However, related rules issued by agencies like the Consumer Financial Protection Bureau, as well as local eviction moratoria, continue around the country.

This litigation update by Caleb Kruckenberg of the New Civil Liberties Alliance, which filed the first challenge to the CDC order, discussed the origins of the moratorium, including relevant congressional action (and inaction), the legal challenges to the moratorium, recent and possible future extensions of the moratorium, and why this case was bound for resolution by the Supreme Court.


  • Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance


As always, the Federalist Society takes no position on particular legal or public policy issues; all expressions of opinion are those of the speaker.

Event Transcript



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Guy DeSanctis:  Welcome to The Federalist Society's webinar call. Today, October 12, we discuss a litigation update, "Eviction Moratoria". My name is Guy DeSanctis, and I'm an Assistant Director of Practice Groups at The Federalist Society. As always, please note that all expressions of opinion are those of the expert on today's call.


      Today we are fortunate to have with us Caleb Kruckenberg, Litigation Counsel, New Civil Liberties Alliance. Throughout the panel, if you have any questions, please submit them through the question and answer feature so that our speaker will have access to them for when we get to that portion of the webinar.


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


Caleb Kruckenberg:  And thank you very much. So I assume a little bit of familiarity with the CDC's eviction moratorium order. It's something that a lot of us dealt with extensively over the last year. But when I first heard about the moratorium, and when the U.S. Centers for Disease Control and Prevention announced last year that it was declaring nationwide housing policy because of Covid, I was incredulous. As a litigator at the New Civil Liberties Alliance who spent the last several years suing federal agencies full time, I still couldn't believe that the agency could be so shameless.


      Even a passing look at CDC's rule demonstrated how preposterous it was for the agency to shut down state courts and tell property owners what they could and could not do with their own homes. Unfortunately, the consequences, as a lot of us know, were predictable and disastrous. Initially, we had courts across the country that were really just plunged into chaos. Tenants immediately stopped paying rent, even when they seemed to have no trouble paying before the order came down. And property owners were forced to provide free unlimited housing to tenants who refused to pay rent.


      In essence, property owners had to stabilize housing policy nationwide. But many of them struggled to pay their own bills and eke out a living. And, over the course of the last year, I've represented a number of property owners who are small mom-and-pop landlords. They own just a few properties. And this is what they have to do to survive.


      And, today, we have a housing crisis. That's what the current administration is declaring. And it was caused by the eviction moratorium. We know that housing stock is down. Availability of rental apartments is down. Apartments are more expensive. And property owners are wary. When they do find new tenants -- when they are renting to people -- they have to insist on large deposits, invasive background checks. It's not good for anybody.


      But I think the focus of today's topic and my talk is really to do a post-mortem on the last year and figure out how the agency got away with it. Because the CDC got away with it for nearly a year, no matter how ridiculous their order, and no matter how absurd their reasoning.


      The big question I have, when I went into this, is how? How did they get away with this? And I think if we look at the litigation and the way it went through, we can draw some really important lessons. First are the kind of tactics that we can expect the administration to continue with. And, also, with some strategies that I think could be successful as we litigate this and other issues going forward.


      First of all, I want to talk about the moratorium itself. As I said, I assume a lot of you are familiar with it. But for those of you who aren't, on September 1 of 2020, the CDC really came out of nowhere and they issued a nationwide eviction moratorium. And the moratorium said that anyone who evicts a tenant is now a criminal if they evict them -- under state law -- if this tenant writes a certain declaration saying, essentially, that they're not able to pay their rent because of Covid-related hardships.


      What on earth is the CDC doing issuing an order like that? Well, they invoked a statute that was originally passed just after World War II. And it empowered the surgeon general to make regulations that were necessary to prevent the introduction, transmission, or spread of communicable diseases between states or into the United States. There's a statute that makes -- in a provision that CDC invoked -- it says, "The surgeon general may provide for such inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infections to human beings, and other measures as in his judgment may be necessary."


      And, using that phrase, "other measures," CDC said, "Well, this is another measure. We can shut down housing courts and we can stop the eviction process nationwide. We can make sure that no one is evicted through the duration of the pandemic. And we believe that might help the Covid pandemic. It might stop the spread of disease, because, well, if you evict somebody there's one more person that has to go stay with someone else." And that was their reasoning. That was their legal basis.


      Now, originally, the eviction moratorium was set to expire on December 31 of 2020. So its original scope was three months. And that, I think, was a deliberate and important point. The agency said, "This is a temporary thing, 90 days, unless we extend it. And they said that in the order. But, again, they said it's just a temporary response. Now, immediately, the response in local jurisdictions was chaos. Because, while the CDC knew this was coming, your local housing court didn't. And many local landlords, many property owners, and many tenants, had no idea that this was coming.


      Under the order's plain language, it said that evicting anybody is a crime. What does that mean, exactly? And there were a lot of questions initially about whether can you file eviction papers. Is that sufficient? Can you even file a case in housing court? Is that a crime now? And there were a lot of disparate responses all over the country. Some courts shut down entirely. They took the view that you couldn't even file an action, and if you did, it was criminal.


      And a lot of courts -- really the prevailing wisdom was that if a tenant files one of these declarations under the CDC's order, then that stops the process no matter what. Essentially, they were saying there's no way to look behind these declarations. But, as I've learned from representing a lot of individuals over the course of this last year, a lot of the people who filled out those declarations had no trouble paying their rent before the order came down. And so they went from being able to pay their rent to just making a declaration -- "I can't pay anything at all. I'm sorry. I have no funds" -- to, suddenly, they didn't have to pay their rent anymore and there were no consequences.


      But a lot of courts just let that slide. They said there's no right to a hearing. There's no way to challenge it. Well, immediately, the New Civil Liberties Alliance filed a lawsuit. We're proud that we're the first people to file a suit on this, but we're glad that a lot of other people joined as well. As I said, the order came out on September 1. It took effect on September 3, which was a Friday. NCLA filed its challenge on Tuesday, September 8, which was actually the first business day because of Labor Day. It was the first business day that the order was in effect.


      We filed in Atlanta as well. And we made a deliberate choice there, because the CDC is headquartered in Atlanta. And we wanted to be able to go to a court that had jurisdiction over the agency itself, to try to issue a declaration or an injunction against the agency, to stop them from -- really vacate the order, and stop them from trying to extend it or enforce it in the future.


      As I said, there are other lawsuits, though. I'm going to mention a few today. There are more. This is not an exhaustive list. But there's a case called Tiger Lily LLC that was filed in Tennessee. That was filed on September 16, so just a few weeks later. And then there's another case, Skyworks Limited. That was filed in October in Ohio. And, finally, there was a challenge filed by the Alabama Association of Realtors. That was filed in November.


      All four of those cases are very important in the ensuing litigation. But they all took sort of different tactics. The first three of those cases, the Brown case—that's the case I filed with NCLA—Tiger Lily and Skyworks, all three of those cases sought a preliminary injunction. And one of the arguments there is for property owners, people who are being forced to provide free housing. That is a deprivation of property rights, and that is an irreparable harm, because you have to turn over your own property to someone else who refuses to pay rent.


      Well, so, as those cases were being litigated, the first decision that came down, unfortunately, was in the Brown case. The one we filed. And it was a denial of a preliminary injunction. That was in late October of 2020. In the Tiger Lily case, and the Skyworks case very shortly afterward, in November of 2020, both of those courts denied preliminary injunctions. And that is sort of when we were coming towards the end of the year and coming towards the original expiration date.


      On December 27, just four days before the expiration date of the eviction moratorium, Congress extended it. But they did so in a really strange way, actually put it in the Consolidated Appropriations Act. And there was just a line that said, "The CDC eviction moratorium order is extended. And it's extended until January 31."


      The courts later decided that wasn't any explicit grant of legislative approval. That was just the Congress saying, "Okay, we're just going to kick it down the road for 30 days. Whatever the agency did is fine with us." After the change in presidential administrations on January 29, the CDC took it back. And they said, "We are now extending our original order through March 31."


      So now this temporary order that was supposed to expire at the end of the year—because Covid would be over by then, apparently—the CDC then took it back and said it went through March 31. And March was a very busy time. In the Brown case, we sought an appeal to the Eleventh Circuit. So, instead of going to the merits, because of the timing, because of the sort of staggering expiration of the order, NCLA chose to file an interlocutory appeal in the Eleventh Circuit.


      The other litigants in the Skyworks decision and in the Tiger Lily decision -- they decided to press forward with a final judgment. And that was, it turned out, was a very good decision for both of them. On March 10, the Skyworks judge issued an order. And he issued a declaratory judgment, saying that the CDC eviction moratorium was invalid, although the Court declined to issue an injunction. And it said, "Just against these litigants, the order is invalid."


      One important part of the Court's reasoning, though, was the Court embraced a non-delegation argument. And I assume a lot of you are familiar with non-delegation, but that's an argument that when Congress gives too much power to an agency—too much legislative power—they're divesting themselves of their legislative role that's given by the Constitution. The Constitution vests the power of the Congress to make all legislation.


      Courts have, for a long time, resisted non-delegation arguments. We were hoping they would come back. With the Gundy decision a few years ago, that didn't really pan out. But, what was important in the Skyworks decision is that the Court said, "Well, I'm going to interpret this statute that the CDC has invoked, whether -- I don't really think it looks like the CDC has this power, but even if I wasn't sure, I want to avoid constitutional doubt. And I want to avoid a potential delegation problem. Because, if CDC can do this, they can do literally anything, and that's got to be unconstitutional."


      Just five days later, in the Tiger Lily decision, that court also concluded that the CDC eviction order was ultra vires, and it said it is invalid. But it enjoined it in the Western District of Tennessee only, and only against the litigants. The problem with both of these orders is they have no practical effect, because the CDC order said, essentially, to courts nationwide -- to housing courts -- it said, "You can't operate." Because the only way to evict a tenant, the only way to go through the normal eviction process, is with a state court judgment. You have to go to state court, and then you have to get an eviction executed by a sheriff or a local official.


      And so what CDC was able to do is they were able to shut down courts from operating. So, if you're a litigant, if you get an injunction against the CDC, doesn't do anything. It doesn't force the courts to open. It doesn't even allow the courts to open. And so, practically, neither one of these decisions did anything for anybody, even the litigants.


      Now, the CDC immediately appealed the Tiger Lily decision, and they sought a stay pending appeal. And on March 29, a panel of the Sixth Circuit, in a published opinion, denied the stay. And they said, "From our perspective, it's highly unlikely that the agency has the power to issue this rule in the first place."


      What's interesting, though, is even then, CDC knew that it wasn't bound by any of these court orders. Because this -- the Tiger Lily decision from the Sixth Circuit -- came down on March 29. Well, on that same day, the CDC extended the eviction moratorium until June 30. Because they knew there was nothing any court was willing to do at that point to stop them.


      So, fast forward a little bit. There was even more litigation. The Eleventh Circuit heard oral argument in the Brown decision, but did not issue a ruling. And then, in May, the Alabama Association of Realtors case -- which, again, had not tried for a preliminary injunction -- finally the district court in Washington D.C. issued a final judgment in that case. And, on May 5, the judge set aside the CDC order nationwide. And, once again, what's interesting about this decision is that the Court said that there was a serious non-delegation issue. And part of the Court's reasoning was avoiding constitutional doubt, constitutional concerns, and interpreting the statute against the agency.


      Well, as great as it was to get a nationwide decision, that decision was immediately stayed by the district court. And then, the D.C. Circuit declined to vacate the stay. And so, even in May, we had no effective rule that stopped the agency. Well, facing yet another deadline on June 24, 2021, the CDC extended their moratorium again, this time until July 31. Around that time, Skyworks case issued another decision. A court issued yet another decision, this time clarifying the scope of the relief. And this was, I think, because the litigants in that case rightly said that "this decision we won, but it doesn't do anything for us. And the agency just keeps extending the order."


      In what I'm calling Skyworks III, the judge basically said, "Well, look, I'm issuing declaratory relief against the agency, against everybody. But I'm not issuing an injunction." And the Court's concern there was about its authority to issue a nationwide injunction, and a nationwide injunction on non-parties. And I'm going to return to that issue in a little bit. But then, meanwhile, going back to the D.C. Circuit -- finally one of these cases went to the United States Supreme Court. And so, just a few days after the CDC had issued its June 24 extension, the Supreme Court weighed in. But the Supreme Court denied to reinstate the district court opinion. But it was a fractured vote, and five members of the court said, essentially, that they knew that the CDC order was unlawful.


      So four justices would have granted preliminary relief. They would have reinstated the district court opinion. That was Justices Barret, Thomas, Alito, Gorsuch -- losing count here -- Roberts. But Justice Kavanaugh issued a concurring opinion. And he said, "I would not grant the stay, although I agree." And what he wrote is sort of telling. It says, "I agree with the district court and the applicants that the CDC and the applicants -- that the Centers for Disease Control lacks -- and existing statutory authority -- exceeded its existing statutory authority by issuing a nationwide eviction moratorium. However, Justice Kavanaugh said, "Because the CDC plans to end the moratorium in only a few weeks, on July 31, I voted this time to deny the application to vacate the district court's stay."


      Here we have Justice Kavanaugh essentially taking CDC's word for it that it's not going to extend the order again. And so, even though it's illegal, sort of a "no harm no foul" analysis -- well, we all know what happened. And, as we're sort of waiting for that to happen on July 14, the Eleventh Circuit ruled in the Brown case, in our challenge to the moratorium. And, unfortunately, the court affirmed the denial of preliminary injunction. Although, three members of the court, all three members -- the panel said, "Well, it's very unlikely that the CDC has this power." The majority said, "We have doubts about the district court's ruling on whether the plaintiffs are likely to succeed on the merits." And part of the reasoning there was -- the majority even said, "We know that the CDC is unwilling to articulate any limits to the CDC's regulatory power at oral argument."


      And I see a comment here. Yes, Justice Roberts was not one of those justices who would have blocked the CDC. I misspoke. Pardon me. But, going back to the Brown decision, ultimately, a majority said, "You know what, we're not going to do anything here because there's no irreparable harm." And two members of the court essentially said, "Look, merely losing your house or your rental property is not enough for us. That is not an irreparable harm." One of the judges dissented in a very long opinion, saying, essentially, "Not only is this completely illegal what the CDC is doing, but this is a serious harm to these property owners because they cannot take back their property. They have to provide free housing, which they're never going to get paid for. And they have to turn over their own private property. This is a really serious concern."


      Just a week later, on July 23, Tiger Lily was affirmed by the Sixth Circuit. And so there essentially became a split, where the Sixth Circuit, once again, in a published decision, said, "Look, this order is completely unlawful. The agency does not have the power to issue this." And, once again, one of the arguments that really won the day was -- as the court put it -- "To put the extra icing on a cake already frosted, the government's interpretation of the statute could raise a non-delegation problem. Under that interpretation, the CDC can do anything it can conceive of to prevent the spread of disease. That reading would grant the CDC director near-dictatorial power for the duration of the pandemic, with authority to shut down entire industries as freely as she could ban evictions."


      And I think, not only do we have a court there that gets it, gets sort of what the concern is, but also embracing, as a legal matter, the problem with non-delegation. And saying, "Even if we're not willing to find a delegation problem, even if these cases aren't going to invalidate statutes on a non-delegation issue, we're going to use it to interpret a statute in a narrow way.


      Well, unfortunately, even a published loss at the Sixth Circuit is not enough to stop -- and even the Supreme Court, even Justice Kavanaugh's faith that the agency will certainly not extend the moratorium past July 31 -- even that wasn't enough. The moratorium did expire on July 31. But on August 3, President Biden said, "Maybe not so fast."


      President Biden actually acknowledged -- and I want to do the quote here, because it's sort of galling and outrageous. President Biden said on August 3, "Well, look. The courts made it clear that the existing moratorium was not constitutional. It wouldn't stand." But then he said, "Still, the CDC might issue a new order. And, whether that option will pass constitutional measure with this administration, I can't tell you. I don't know. But, at a minimum, by the time it gets litigated, it will probably give some additional time."


      And I think, for the first time in all of this, we really see the administration saying the quiet parts loud. This is the first time where they say, "Well, actually, look. We know we can't get away with this. We know we can't do this. But we don't care, because we know it's going to take some time." And that same day -- shocker -- the CDC issued another extension of the order, resting on the same statutory standard that five members of the court said, at least strongly hinted, was invalid. And they extended it until October 3.


      Well, everybody scrambled to try to get something to have happen. Because, remember there was, even then, even after having several favorable decisions by the district courts, there's no nationwide relief for anyone. Finally, in the AAR -- or the Alabama Association of Realtors case -- the plaintiffs went back to the district of D.C. The judge said, "Look, my hands are tied by the D.C. Circuit. I can't vacate my stay." The D.C. Circuit agreed. Finally, on August 26, the Supreme Court stepped in. They'd had enough, I guess, at this point. Which is about a year almost to the day of having the CDC order. And the court said, in a short per curiam, it said the applicants not only have a substantial likelihood of success on the merits—that's the property owners—it's difficult to imagine them losing.


      And, yet again, the Court—this time the Supreme Court—embraced this sort of delegation idea. It said the government's read of the statute would give the CDC a breathtaking amount of authority. It's hard to see what measures this interpretation would place outside the CDC's reach. And the government has identified no limit in the statute beyond the requirement that the CDC deem a measure necessary.


      The Court also recognized the importance of property rights here. Because, in the posture that the Court was dealing with this case, they were just vacating the district court's stay of its own opinion. And so this was an equitable decision by the Court. And so they talked about the equities. And they see that the equities do not justify depriving the applicants of the district court's judgment. And part of this is the moratorium has put the applicants, along with millions of landlords across the country, at risk of irreparable harm by depriving them of rent payments with no guarantee of eventual recovery.


      The Court also said it's also irreparably harmed property owners, because it has prevented them from evicting tenants who breached their leases, intrudes on one of the most fundamental elements of property ownership: the right to exclude. So, even though all of these other courts had ruled there was no irreparable harm to the property owners, we have the court here finally say, "Well, actually, that's probably not the case. We recognize that this intrudes on fundamental property rights."


      Of course, August 26 of this year is kind of too late for everybody that's been dealing with this for a year at that point. Finally, on August 26—once the Court allowed the district court's nationwide order to go into effect—CDC finally pulled the eviction moratorium. On September 3, the CDC dismissed its appeal and, essentially, the moratorium went away. But, as a lot of us know, that's really not the end of it. We know there are other moratoria. There are other local rules. There's local moratoria. There's state moratoria. It doesn't mean that housing court is open. And, of course, we all know, as well, that this is not the only Covid emergency measure. Obviously, we have more coming from this administration.


      But I think, moving forward, and looking at these other moratoria, there's a few lessons. And there's a few sort of explanations for how this preposterous eviction moratorium order that we all knew -- I think if you looked at the statute, it seemed completely unreasonable that any judge would think that the agency had this kind of power. How did it take a year to make it go away? To get any meaningful relief for anybody?


      Well, first of all, I think, unfortunately, we had a credulous judiciary that -- at least initially -- was giving a lot of leeway to the government because of the pandemic. That's nothing new. And if we look at, really, any litigation dealing with the pandemic, this is a prevalent theme, is that courts are giving the government a lot of slack. But this is definitely unearned. The CDC here, they just sort of said, "Covid." And that was it. There was never any sort of rational explanation. And there was never any sort of rational argument from the agency that somehow allowing local housing courts to operate, or allowing people to take possession of their own property, was somehow a public health menace because of Covid.


      I think, in the early stages of the litigation, though, a lot of judges were willing to give the agency slack. But I think that we can trace sort of a progression through the decisions. I think by the time we got into 2021, that's when we started having judges say, "Wait a minute. Wait a minute. The agency still hasn't really said anything." Of course, they got through to the person they got through to. The agency did. They convinced Justice Kavanaugh to give them a break, to give the agency a break. And I think his concurrence -- you know, we look at it now, and it seems sort of wholly predictable for the agency to, with a straight face, go to the court and say, "We would never dream of extending this ever again." And the second they get what they ask for, they turn around and extend it again.


      But we have even Justice Kavanaugh, I think, giving a lot of credence to the agency. But then, obviously he was -- he has egg on his face about that decision. And that, I think, leads me into my second point, is that a lot of the problem here is we have an absolutely shameless government. And we have an absolutely shameless agency. This was a deliberate strategy. I have no doubt in my mind. If we look at the history, as we just did, the eviction moratorium never existed for more than a few months at a time. And this allowed the agency to go in, at least, with a straight face. And I'm not going to say credibly, but at least without sort of giving it away, they could go into court and say, "This is expiring in six weeks. There's nothing here. There's no problems." And courts were willing to just accept that.


      Of course, what they were allowing -- what the agency could do then -- is they could avoid real decisions on the merits by sort of maneuvering around. They could say, "Well, this is expiring. It's too -- we don't need preliminary relief." Or, they could sort of push the courts in a lot of different directions and sort of manipulate what was going on. I mean, clearly, we saw that with the Alabama Association case. There's nothing but manipulation there.


      We also have an agency that refused, really, to follow court orders. The CDC essentially treated the Tiger Lily and Skyworks decisions as not existing, even in the Sixth Circuit. Even when the Sixth Circuit denied a stay in the Tiger Lily case, and said, "No. The agency doesn't really have the power to issue this. We're not going to issue a stay of the court's orders." That very same day, the agency extended the moratorium in the Sixth Circuit and everywhere else.


      So, we have an agency that knows that it has these sort of limited rulings -- these limited rulings against the agency. But it's still not willing to really even follow them. It's sort of doing whatever it can get away with. And, of course, even after the moratorium ended on July 31, we have the president really acknowledging what we all know happened all along, that this is a lot of maneuvering. They knew. The administration knew. They said it. They said it to all of our faces. They knew they couldn't get away with this. They knew it wasn't constitutional. But there's no consequences. They know there's no consequences. They know there's nothing going to happen to them. And so, as they said, they can buy some time. They can make it go on for another month, even though they know that this is unlawful. And who cares. Nobody's ever going to stop them.


      Well, so, as we take these lessons going forward, one of the things I think we have to be mindful of, and one of the things that -- this is a lesson that I've learned in this litigation, is that seeking preliminary relief can be a real problem. It can unnecessarily hamstring the litigation. So, the Brown case, as I said, we sought preliminary relief. We sought a preliminary injunction. And when a preliminary injunction was denied, we decided strategically to try to go for an interlocutory appeal to try to get the same injunction on appeal. That was not successful, ultimately.


      Part of the reason we went there is we thought, well, this is expiring. We don't know when it's going to -- if it's going to be extended. We don't know. And we have clients who are hurting now. We need to try to step in. The problem is, it's easy for a court that doesn't want to go there to sort of avoid the really important issues and essentially duck them. When we look at the Brown decision from the Eleventh Circuit, as I said, the majority expressed its doubts that the agency had that power. But it still denied relief because of its preliminary injunction analysis, and its decision that there was no irreparable harm. I think the Supreme Court eventually disagreed with that. But still, that was an easy way for the court to avoid the tougher issues.


      The problem though, of course, is that final judgments take time. Even in the Tiger Lily decision, and the Skyworks decisions. Those cases were filed in September and October. They didn't get final orders, final judgments, until March. And even that was on an expedited schedule.


      So that was three months after the initial expiration, and six months into this. So, I think, as litigators, we have to decide what's most appropriate. And I think we have to look at -- there's going to be downside. There's going to be downside risks to seeking preliminary relief. But if we go for final relief, then it may take time. And I don't know if there's a good answer. But it certainly, I think, clarifies. This is the analysis we all have to do right up front.


      And another issue is the scope of relief. Because how is it that the agency lost twice and got two -- there were two orders saying the eviction moratorium is invalid, and yet, there was no relief for anyone? Part of it, I think, is about the sort of unique nature of the CDC order, where it's essentially shutting down courts, which are sort of on their own -- state courts. But I think there's a real conflict between declaratory and injunctive relief. And one of the concerns -- and it's certainly a valid concern -- one of the concerns in the Skyworks decision was that the Court said, "I don't want to issue a nationwide injunction. I don't think that's appropriate because I have limited jurisdiction."


      I think there are a lot of us that would agree with that sentiment. But what is a judge to do, however, when an agency is saying, "We don't have to listen to you. We can do whatever we want to. We can issue a nationwide order that effects everybody. And you can't stop us"? What I do think a judge can do, and what a court certainly can do, is it can order a litigant not to do something. Part of the reason that NCLA's strategy was to sue in Atlanta was because we wanted to make sure that the court had jurisdiction over the CDC. Because I think there's no doubt that if the CDC is in Atlanta, we're in court in Atlanta, a federal judge can say to the agency, "You are enjoined. You cannot do this. You have to vacate this rule. You can't reissue it."


      Because, unfortunately, as we saw, with just the declaratory judgment just saying, "Well, this is invalid against the parties," CDC, at least, didn't think it had any effect. It still thought it could extend the moratorium in that same jurisdiction afterward. Interestingly enough, on this same point, though, the Supreme Court seemed, at least tacitly, to bless a nationwide vacatur of an agency rule. Because, remember, in the district of D.C., the court there just said, "The rule is invalid for Administrative Procedure Act claims. I'm just going to set it aside. That's what the statute allows me to do. There is no rule, now that the order has come out."


      Supreme Court didn't say anything about that. But what they did say is that the district court's stay is vacated. The district court's order is reinstated, which included that relief. In moving forward, some of us might take that to at least signal that the court has no problem with -- at least in the Administrative Procedure Act context -- nationwide relief, with an agency being told that its rule -- which does have nationwide effect -- is invalid, and simply doesn't exist.


      Now, as I mentioned before, one of the other lessons we can draw -- and hopefully, one of the things we can use in future cases -- is, really, the power of non-divestment or non-delegation arguments. Now, some of these cases even addressed Chevron deference, which, if you know anything about me or my organization, is something that we hate very much, we've been fighting against since day one. But the Sixth Circuit suggested that even deference, even Chevron deference, they would say, "No, no, no, no, no." In a case like this, when we have a delegation problem, if we have an agency that's acting on what seems to be a completely limitless grant of authority, not only are we going to read that narrowly, but we're not going to give the agency the kind of deference we normally would.


      This has a lot of very major implications in future litigation. Not just Covid. Not just housing policy. But any time the agency acts. And it raises the possibility of a delegation issue, if we think to ourselves, "If the agency can get away with this, what can't they do?" And I think the courts are starting to recognize that that is a legitimate concern, and they're willing to push back on that theory. And that's something I think we need to litigate. And I think, hopefully, you'll start seeing it in a lot more decisions looking forward.


      And, finally, I think the lesson that I draw from this is that the Supreme Court still cares very much about property rights. Ultimately, that's what won the day, I think. In the Court's very short per curiam, it emphasized that just because you're a landlord, just because you rent your house to somebody, doesn't mean it's not your house, doesn't mean it's not your property. And it certainly does not mean that you don't have a fundamental right to do with it whatever you want to do with it. One of the most fundamental rights you have in property rights is keeping people out of your property. The Court really embraced that. And, I think, moving forward, particularly with challenges to these kinds of moratoria, I think that is a lesson we should draw. And that's something we should lean heavily onto.


      Now, I'm seeing some questions here. I don't want to take up too much time. That's all I had prepared. I want to go through some of the comments. One of the comments I see is that the real problem is there's no negative consequences. There's no negative consequence to the agency. And I really couldn't agree more. It is shocking to me that we have an agency that has been so brazen, so willing to sort of embrace what they're doing as being unlawful. And courts have allowed them a complete pass. Do I hope that some of the courts will be chastened? Maybe Justice Kavanaugh's experience here will signal to the courts maybe you shouldn't just give them the benefit of the doubt. Maybe there should be some consequences.


      But I don't know. I don't see that happening. And I don't know what the real answer is. I think it goes back to judicial fortitude. Right? That is a term that I didn't coin, but we use a lot. It goes back to a judiciary that's willing to stop the agencies. It's willing to stop executive actors -- anybody who's breaking the law -- and is willing to put their feet to the fire.


      So, another question, or another comment I see, is about the OSHA mandate litigation, and about non-delegation. And I think I agree with you there, that -- particularly with Covid -- issues with vaccine mandates, with all of these sorts of administrative proceedings, administrative rules the agencies are going to pass in response to Covid, and as we sort of go on longer and longer, it gets harder and harder to believe that we are still all living in a state of constant emergency. But I do think that the non-delegation argument is really going to take hold. And my hope here is we can use it in this kind of litigation to set up future challenges. Because, certainly, this isn't the only example. I think Covid is something that's front of mind, and we've seen some of the worst abuses. But, if we go through the code of federal regulations, and we talk to people who are subject to regulations, this isn't a new problem, although we're finally starting to talk about it.


      I do have a question here about the Eleventh Circuit litigation, and so I did neglect to mention where things stand there. So that case is technically still going. And, as I've mentioned, we sought a preliminary injunction. That was denied. We sought an interlocutory appeal to the Eleventh Circuit. The Court -- in a 2-1 decision -- affirmed the district court. It said there is no preliminary relief. The Court also withheld its mandate, though. Which means that the decision didn't become final. And there's a lot of different reasons for that, but essentially, it means that one member of the court said, "We're going to withhold the mandate for some reason."


      While the eviction moratoria were still alive, we sought re-hearing en banc. And, part of that, I think, is we recognized the other litigation that was going. And that is still pending. And so, part of what we asked to review is about what a litigant has to show to demonstrate irreparable harm. Because, I think, even though we know now today the eviction moratorium is a dead letter, I think that decision from the Eleventh Circuit -- there's some real issues there. And it changes our analysis. If that decision stands, ultimately, that puts litigants in a really tough spot when they have to allege irreparable harm -- which they are actually suffering -- even when they challenge a rule that everybody knows is illegal. I mean, everybody knows. Everybody agreed, at that point, that the CDC order was illegal. But, essentially, the court said "It's too late" or "It's too early. You can't challenge it in this particular context." So we're hoping the Eleventh Circuit re-hears that case to decide those important preliminary questions, which, I think, will be important in future litigation.


      So, I have another question here in the comments about other federal administrative agencies. So, asking about other agencies and sort of what they might want to do. And I think one -- and this is like a very hasty sort of summary of this comment, but it brings up a point I neglected to make. Obviously, politics played a huge role in this entire thing, in this entire litigation, from day one. This was really a transparently political move. The eviction moratorium is popular, as long as you don't think too hard about it. It's popular because we all agree; nobody wants anybody to be evicted. And particularly in a pandemic, it's easy to sort of make a synthetic case. How dare you go through with the eviction process.


      Of course, that only works if you don't acknowledge the truth. And that's that if you are forbidding evictions, you're also saying that someone has to provide free housing. That's the other side of it. And, what happens is, an agency can make that decision without any sort of political fallout. They can say, "Look. We did this thing that's popular. And there's this unpopular aspect of it, this harmful aspect of it. What are you going to do? Are you going to vote us out?"


      And Congress, then, can sort of duck the whole thing. And that's something we saw with Congress. Even the very last extension was obviously political. Because we had members of Congress saying, "We can't get our act together. We can't do a Congressional act to try to do a nationwide eviction with rental assistance." So they went to the president and they complained and they said, "You've got to extend the order some more, because we can't legislate." And so they did.


      Well, we're going to see more of that. We're already seeing more of that in federal agencies. And we're definitely going to see more of that in this administration. I think it's really not news to anybody. But, I think, yes, we're starting to see it. We're starting to see it with the Department of Labor, with HUD. I mean, one of the sort of obvious examples is the president's minimum wage executive order for federal contractors that also happens to apply to people who aren't really federal contractors, but sort of contractor-adjacent. That is a political decision made by the president, and affected through an agency that is outside of its power here. And so, I think, just moving forward in the next few months, that's something we're looking at. And I think we're going to have to keep litigating it.


      There is a question here, just about actual, on-the-ground, what's happening in housing court today. And I wish I had a good answer, but it's different everywhere. And one of the problems is that a lot of courts are still sort of shaking off the dust and trying to figure out what they're going to do. I've had people who report back to me that there's a lot of backlog. There are courts that are way behind. They're not able to catch up. They're not able to issue eviction orders. We're still going to see a lot of fallout for the next few months, I think. And, again, this is all really just a predictable and eminently avoidable problem. This is what happens when an agency legislates, when an agency sets broad policy goals that they don't have any business doing, vastly exceeding their power. And really harming innocent people in the process.


      So, I think now we're, of course, we're coming on to the end of the time. I want to thank everybody that's been on this call today that's followed this issue. I hope, looking back in the next year or so, we can learn some of these lessons. We can use some of these new decisions, some of these tools. And we can stop these agencies from getting away with this again. But, I just want to say, as someone who's represented a lot of property owners, a lot of different people that are harmed by this, really, this is a great example of a lot of people in Washington get together and they don't think about the consequences of what they're doing.


      So it's been a privilege for me to be able to represent normal people who have been abused by the agency. It's not a privilege that they've been suffering that way. But it's a privilege to know them and represent them. And I'm glad to be able to do this work. And we're going to just continue. So, thank you very much.


Guy DeSanctis:  Thank you. On behalf of The Federalist Society, I want to thank our expert for the benefit of his valuable time and expertise today. And I want to thank our audience for joining and participating. We also welcome listener feedback by email at [email protected]. As always, keep an eye on our website and your emails for announcements about upcoming Teleforum calls and virtual events. Thank you all for joining us today. We are adjourned.





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