DOJ RESPONSE IN OPPOSITION TO PLAINTIFFS’ MOTION TO VACATE THE DISTRICT COURT’S STAY PENDING APPEAL

INTRODUCTION

To curb the spread of COVID-19, the Centers for Disease Control and Prevention (CDC) issued and extended a temporary moratorium on certain residential evictions. The CDC order at issue here was issued on August 3, 2021, “in order to respond to recent, unexpected developments in the trajectory of the COVID-19 pandemic, including the rise of the Delta variant.” Temporary Halt in Residential Evictions in Communities with Substantial or High Levels of Community Transmission of COVID-19 to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 43,244, 43,245 (Aug. 6, 2021) (August Order). The August Order is more targeted than the prior CDC orders and fulfills the same statutory charge to “make and enforce such regulations as in [the agency’s] judgment are necessary to prevent the introduction, transmission, or spread of communicable diseases . . . from one State or possession into any other State or possession.” 42 U.S.C. § 264(a).

In prior proceedings, the district court held that the moratorium exceeded the CDC’s statutory authority and vacated the moratorium nationwide, but stayed its judgment pending appeal. This Court denied plaintiffs’ emergency motion to vacate the stay, ruling for reasons detailed in the order that the government made a strong showing that it is likely to succeed on the merits, 2021 WL 2221646, at *1-3; that plaintiffs failed to show irreparable harm, id. at *3-4; and that plaintiffs’ harm was outweighed by the government’s strong interest in protecting the public health, id. at *4.

Plaintiffs then asked the Supreme Court to vacate the stay and offered a variety of bases for doing so, including “the downward trend in COVID-19 cases,” “the effectiveness of vaccines,” and the CDC’s guidance that “vaccinated individuals may dispense with masks and social distancing indoors.” Pls.’ Emergency Appl. for Vacatur at 4, No. 20A169 (June 3, 2021), https://go.usa.gov/xFNup. On June 29, the Supreme Court denied plaintiffs’ application. 141 S. Ct. 2320 (2021). Four Justices voted to grant the application but did not provide their reasoning. Justice Kavanaugh concurred in the denial of the application, indicating that he believed that the CDC “exceeded its existing statutory authority by issuing a nationwide eviction moratorium,” but that he was voting to leave the stay in place because the CDC planned to end the moratorium on July 31. Id. at 2320-21.

Since the time of the Supreme Court’s action, the trajectory of the pandemic has changed dramatically for the worse. The seven-day average of daily new cases is now 119,523—nearly a nine-fold increase over the rate when the Supreme Court ruled. See CDC, COVID Data Tracker: Trends in Number of COVID-19 Cases and Deaths in the US Reported to CDC, by State/Territory, https://go.usa.gov/xFRXv (last visited Aug. 16, 2021). Case trends are expected to continue rising over the coming weeks. See CDC, COVID Data Tracker: United States Forecasting, https://go.usa.gov/xFRFQ (last visited Aug. 16, 2021). New evidence suggests that the Delta variant is more than twice as transmissible as the original strains of SARS-CoV-2; that even vaccinated individuals who become infected with the Delta variant may transmit the virus to others; and that the Delta variant may increase the risk of breakthrough infections among vaccinated persons. See CDC, Delta Variant, https://go.usa.gov/xFvXF (last updated Aug. 6, 2021).

The CDC is thus again recommending indoor masking even for fully vaccinated people. See CDC, Interim Public Health Recommendations for Fully Vaccinated People, https://go.usa.gov/xFRX6 (last visited Aug. 16, 2021). Hospitalization rates in some States are approaching (if not surpassing) their winter peaks, see CDC, COVID Data Tracker: Prevalent Hospitalizations of Patients with Confirmed COVID-19, https://go.usa.gov/xFnYg (last visited Aug. 16, 2021), with hospitals across the South stretched to capacity fighting outbreaks, see, e.g., Gabriella Borter, Children hospitalized with COVID-19 in U.S. hits record number, Reuters (Aug. 14, 2021), https://perma.cc/VFA5-BC6Z. Children under age 12 are not yet eligible for vaccines, and the number of children hospitalized with COVID-19 recently hit a record high. See id.; see also CDC, COVID Data Tracker Weekly Review: Interpretive Summary for August 13, 2021, https://go.usa.gov/xFvXv (last visited Aug. 16, 2021). More than 10,000 students and teachers have been quarantined within the first few days of starting school. See, e.g., Jaclyn Peiser, As schools reopen, more than 10,000 students and teachers across 14 states are quarantined for coronavirus exposure, Wash. Post (Aug. 13, 2021), https://perma.cc/7T2J-MGZK. Many businesses are delaying return-to-work plans, see, e.g., Lauren Hirsch, Delays, More Masks and Mandatory Shots: Virus Surge Disrupts Office- Return Plans, N.Y. Times (July 23, 2021), https://nyti.ms/2VryVw5, and many courts have suspended in-person proceedings, see, e.g., D.C. Circuit, Update to Court Operations (Aug. 13, 2021), https://go.usa.gov/xFvDu.

Nonetheless, plaintiffs have renewed their motion to lift the stay of the district court’s judgment in this case. The district court correctly denied that motion as barred by the law-of-the-case doctrine, which provides that “a court involved in later phases of a lawsuit should not re-open questions decided . . . by that court or a higher one in earlier phases.” App. 64a (quoting Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)). That doctrine prohibits a motions panel from reaching conclusions opposite to those reached by the prior motions panel “on the same issues, in the same emergency posture, and in the same case.” App. 69a.

Contrary to plaintiffs’ premise, “the Supreme Court’s ruling” denying their prior application does not free this Court “to consider the matter afresh.” Mot. 22. As the district court explained, “circuit precedent provides that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law.” App. 68a (citing United States v. Epps, 707 F.3d 337, 348 (D.C. Cir. 2013)). “Moreover, because the four dissenting Justices did not explain their votes, it is impossible to determine which proposed disposition—theirs or Justice Kavanaugh’s—is the ‘common denominator’ of the other.” App. 69a (quoting Epps, 707 F.3d at 348). This Court’s “adherence to the law of the case” does not “insulate an issue from [the Supreme] Court’s review,” but this Court should “be loath to” reverse its own prior ruling. Christianson v. Colt Indus. Operating Corp., 486 U.S. 800, 817 (1988). “[T]he same issue presented a second time in the same case in the same court should lead to the same result.” LaShawn A. v. Barry, 87 F.3d 1389, 1393 (D.C. Cir. 1996) (en banc).

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