Eviction Moratorium Litigation Moves on Fast Track Through Courts, but Will Time Run Out?


The Case Advances to the Court of Appeals

The landlord association responded to Judge Friedrich’s decision by promptly proceeding to the D.C. Circuit.  On the very next day, a Saturday, it filed filing a motion to lift the stay in the appellate court.  It got DOJ to agree to an extremely fast briefing and argument schedule, which the D.C. Circuit approved.  DOJ did not attempt to drag its heels, which is a sign of some professionalism on its part.   The matter will be fully briefed by Wednesday (today) and the argument will take place on Thursday.  Then the circuit court, like Judge Friedrich, will probably take a few days or the better part of a week to prepare and issue its decision.  When the circuit ruled on the stay in this case in the spring, it took just over two weeks from the filing of the motion to the decision of the court.

The landlord association makes essentially the same arguments to the D.C. Circuit that it made to Judge Friedrich:  that the legal landscape has shifted as a result of the Supreme Court’s decision.  Accordingly, it argues that because it is obvious that it is very unlikely that the Supreme Court will find that the 1944 statute authorizes the eviction moratorium, the stay should be lifted.  In other words, the D.C. Circuit should put an end to the renewed moratorium now because it’s clear what a majority of the Supreme Court Justices think even if technically their last decision did not strike down the stay.  Unbelievably, the brief does not argue both of the other federal circuit opinions, but only one.  The brief relies primarily on the argument about the Supreme Court’s June 29th ruling.

The DOJ, for its part, again argues that this matter is governed by the “law of the case” doctrine, and that the D.C. Circuit should not reconsider its ruling, made just two months ago, that a stay is warranted in this case.  It asserts that the Supreme Court’s ruling “does not free this Court to consider the matter afresh” for two reasons.  First, it relies on the same circuit precedent it cited to Judge Friedrich saying that the votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law.  Second, DOJ claims that “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.”  DOJ concludes: “[T]he same issue presented a second time in the same case in the same court should lead to the same result.”  That is the essence of the “law of the case” doctrine.

Be sure to read the rest here…