Appeals court rejects effort to halt Biden eviction moratorium

A federal appeals court on Friday rejected an effort to block the Biden administration’s new eviction moratorium, likely teeing up the lawsuit for the Supreme Court.

A three-judge panel for the Court of Appeals for the District of Columbia Circuit unanimously denied an emergency motion filed by two chapters of the National Association of Realtors to halt the eviction ban.

The brief, unsigned decision comes a week after U.S. District Court Judge Dabney Friedrich, a Trump appointee, rejected the groups’ effort to block the moratorium issued by the Centers for Disease Control and Prevention (CDC).

Just hours after the D.C. Circuit’s ruling, the landlord groups asked the Supreme Court for review, accusing the administration of having “caved to political pressure” to extend the moratorium.

“In light of the Executive Branch’s statement that its litigation efforts are designed to buy time to achieve its economic policy goals–and the fact that landlords are now subject to federal criminal penalties for exercising their property rights depending on where they do business–applicants respectfully ask this Court to issue relief as soon as possible,” they wrote in their Supreme Court brief.

Earlier this month, President Biden ordered a more limited extension of the eviction freeze that expired in late July. The current moratorium is slated to expire in early October.

The Alabama and Georgia chapters of National Association of Realtors filed their emergency motion last week with the D.C. Circuit to overturn Friedrich’s decision, citing Biden’s admission during a press conference that the new CDC order may “likely not pass constitutional muster” but could buy time for the government to distribute rental assistance.

“That development alone means the public interest overwhelmingly supports lifting the stay, for if the Executive Branch is allowed to engage in such conduct with impunity, the rule of law—and hence the public—will suffer, both now and in the future,” the groups wrote in their motion.

An attorney representing the realtor groups did not immediately respond when asked for comment on Friday.

The Justice Department, representing the Biden administration in the case, argued that infection rates have worsened significantly since a related Supreme Court ruling in June, creating higher risks if evictions were allowed to proceed.

Government lawyers also argued that the new moratorium covers only areas with higher infection rates, making it more targeted than the previous freeze. Still, the latest ban covers an overwhelming number of U.S. households.

Friedrich had ruled in May that the previous CDC moratorium was unlawful but agreed to stay enforcement of her order because of the health risks that widespread evictions might pose in the midst of a pandemic.

The Supreme Court ruled 5-4 in June to keep the previous moratorium in place. Justice Brett Kavanaugh, who sided with the majority, said in a concurrence at the time that he believed it would require an act of Congress to extend the moratorium past its July deadline, leading some observers to believe that opponents of the eviction ban might have a better chance in court if they were to seek Supreme Court review again given that Congress has not taken action.

Updated at 6:08 p.m.