U.S. District Judge leaves in place the extension of CDC Eviction Moratorium saying, “the Court’s hands are tied.”


By: Brian Goldberg and Nicolas Bohorquez

On August 13, 2021, U.S. District Judge Dabney L. Friedrich denied the Plaintiff Alabama Association of Realtor, et. al.’s Emergency Motion to Enforce the Supreme Court’s Ruling and to Vacate the Stay Pending Appeal filed in U.S. District Court, District of Columbia, Case No. 20-cv-3377 (DLF).

In denying the motion, the court first analyzed whether the Temporary Halt in Residential Evictions in Communities with Substantial or High Transmission of COVID-19 to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 43,244 (Aug. 6, 2021) was an extension of the previously vacated eviction moratorium that was stayed pending appeal, or an entirely new policy.   

The court noted two key differences between the August 6, 2021 moratorium and the previous version: (1) the current moratorium is effective through October 3, 2021, and covers all evictions initiated but not finalized before the order’s promulgation on August 3, 2021; and, (2) the current moratorium applies only in U.S. counties experiencing substantial and high levels of community transmission levels of SARS-CoV-2 as defined by CDC. The previous eviction moratorium “applied in all U.S. counties.”

The court then determined that “[b]ecause the current moratorium is fundamentally similar to its predecessors, it is ‘so related’ to them as to fall within the [previous] May 5 vacatur order.” Thus, “the Court conclude[d] that the current eviction moratorium is an extension of the vacated moratoria, such that it is subject to th[e] Court’s May 5 order and its subsequent stay pending appeal.”

Although the court concluded that the August 6, 2021 eviction moratorium is merely an extension of the prior moratoria, and therefore subject to the court’s previous vacatur order, it also agreed with the government’s argument that the law-of-the-case doctrine nonetheless requires the court to maintain the stay as a matter of law. The court clarified that “the law-of-the-case doctrine 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.” (citing Crocker v. Piedmont Aviation, Inc., 49 F.3d 735, 739 (D.C. Cir. 1995)).

The government argued that three conclusions in the D.C. Circuit’s judgment granting a preliminary injunction qualify as the law-of-the-case: (1) That the government was likely to succeed on the merits; (2) That the plaintiffs failed to show irreparable harm; and, (3) That “the magnitude of any additional financial losses incurred during appeal is outweighed by HHS’s weighty interest in protecting the public health.”

Agreeing with the government’s position, the court concluded that, “[b]ecause these are clearly affirmative decisions by that court, and because the court reached them in this same case, the government is correct that they are binding [in this case].”

Conversely, plaintiffs’ unsuccessfully argued that the law-of-the-case doctrine should not apply to a trial court or appellate court’s decision to grant or deny a preliminary injunction. The court disagreed stating that, “[A] contrary approach to the law-of-the-case doctrine would produce absurd results whenever a district court and a court of appeals disagree over emergency relief.”

Perhaps the most important takeaway from the court’s ruling is that while the stay will remain in place for now, it has a low chance of surviving subsequent legal review. The court observed that the Supreme Court’s recent decision in this case – in addition to other decisions from the federal courts of appeals – strongly suggests that the CDC is unlikely to ultimately succeed on the merits. The court even went so far as to say that, “absent the D.C. Circuit’s judgment, this Court would vacate the stay…[b]ut the Court’s hands are tied.”

In the end, the Court held that to lift the stay, the plaintiffs must seek relief before the D.C. Circuit. It is expected that the plaintiffs will do just that – immediately seek relief from the D.C. Circuit and request the August 6, 2021 eviction moratorium be lifted.

If you have any questions as to the effects of the decision in this case or need assistance with a matter involving the CDC moratorium please do not hesitate to reach out to Brian Goldberg at and Nicolas Bohorquez at in our Atlanta office.