Federal judge rejects effort to block eviction moratorium

A federal judge in Washington, D.C., on Friday rejected a request from a group of landlords to block the Biden administration’s renewed eviction moratorium.

The ruling by U.S. District Judge Dabney Friedrich, a Trump appointee, leaves intact the Centers for Disease Control and Prevention’s (CDC) extended freeze on evictions, which is set to run until early October.

The development comes after Friedrich ruled in May that a previous version of the CDC’s eviction suspension was an illegal exercise of the agency’s authority, though she agreed at that time to delay enforcement of her decision, citing the risk to public health if evictions were allowed to proceed.

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The ensuing months have seen a flurry of political and court activity related to the eviction freeze as the delta variant of the coronavirus has spread through some of the most eviction-vulnerable communities in the U.S. The moratorium has faced numerous court challenges, leading to a patchwork of interpretations nationwide on its lawfulness.

The somewhat technical issue before Friedrich here was which of two higher court rulings — one from the D.C. Circuit Court of Appeals and another from the Supreme Court — she was required to follow.

In June, the D.C. Circuit, and later the Supreme Court, denied requests from the landlord group to immediately implement Friedrich’s ruling, which would have effectively ended the eviction ban.  

But where the D.C. Circuit said clearly that the stay on Friedrich’s ruling should remain in place indefinitely, the Supreme Court in a 5-4 ruling was more equivocal.

Justice Brett KavanaughBrett Michael KavanaughLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Why Latinos need Supreme Court reform Feehery: A Republican Congress is needed to fight left's slide to autocracy MORE in June joined the majority to deny the landlords’ request, but also said he agreed with Friedrich’s view that the CDC had exceeded its authority in enacting the moratorium. In a brief concurrence, Kavanaugh said he believes Congress would need to pass new legislation for the CDC to lawfully push the moratorium past July 31.

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At that time, four of the court’s more conservative justices, Clarence ThomasClarence ThomasLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Two conservatives resign from Biden's Supreme Court commission Sotomayor says recent changes were made because male justices interrupted female colleagues MORE, Samuel AlitoSamuel AlitoLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment The Hill's Morning Report - Presented by Altria - Jan. 6 panel flexes its muscle Sen. Whitehouse blasts Alito speech: 'You have fouled your nest, not us' MORE, Neil GorsuchNeil GorsuchLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Justices weigh request for information on CIA's post-9/11 torture program Supreme Court declines to hear dispute over DC representation in Congress MORE and Amy Coney BarrettAmy Coney BarrettLocked and Loaded: Supreme Court is ready for a showdown on the Second Amendment Biden's Supreme Court commission ends not with a bang but a whimper Biden's Supreme Court reform study panel notes 'considerable' risks to court expansion MORE, indicated that they would have lifted the stay and allowed Friedrich’s ruling to take effect while the Biden administration appeals. 

When the Biden administration on Aug. 3 acted on its own — without Congress — to renew the lapsed eviction freeze, the landlord group cited the opposition expressed by Kavanaugh and the four other conservatives and urged Friedrich to invalidate the latest version of the eviction moratorium.

But in her Friday ruling rejecting the landlords’ request, Friedrich said she was bound by the D.C. Circuit Court, the intermediate appellate court between Friedrich and the Supreme Court.

“Because the D.C. Circuit’s judgment affirming the stay binds this Court and the Supreme Court did not overrule that judgment, the Court will deny the plaintiffs’ motion,” she wrote.

“It is true that the Supreme Court’s recent decision in this case strongly suggests that the CDC is unlikely to succeed on the merits,” Friedrich wrote later in her opinion. “But the [District] Court’s hands are tied. The Supreme Court did not issue a controlling opinion in this case, and circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law.”

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An attorney for the challengers, led by the Alabama Association of Realtors, did not immediately respond to a request for comment.

The CDC measure, originally enacted in September, protects tenants who state under penalty of perjury that they are unable to pay rent and would face overcrowded conditions if evicted, threatening public health. 

The renewed eviction freeze enacted earlier this month and set to expire Oct. 3 is narrower than the previous nationwide iteration, instead focusing on U.S. counties experiencing “substantial or high levels of community transmission levels” of the coronavirus while federal rental aid continues to trickle out to renters.

The Treasury Department in late July said roughly $3 billion of the $46 billion allocated for emergency rental aid had been distributed by state governments.

Updated 12:37 p.m.