District court leaves federal eviction protections in place

District judge cites Justice Kavanaugh's vote, not his opinion

Demonstrators attend a rally calling for an extension of the state's eviction ban until 2022 and the cancellation of rent, in lower Manhattan, New York city on August 11, 2021.  (Ed Jones/AFP via Getty Images)
Demonstrators attend a rally calling for an extension of the state's eviction ban until 2022 and the cancellation of rent, in lower Manhattan, New York city on August 11, 2021. (Ed Jones/AFP via Getty Images)
Posted August 13, 2021 at 1:35pm

The U.S. District Court for the District of Columbia on Friday denied a request by two Realtor associations to overturn the federal ban on evictions due to expire Oct. 3.

The same district court in May ruled that the Centers for Disease Control and Prevention’s eviction moratorium was unlawful but also placed a stay on the decision, leaving the ban in place until the government could appeal. In subsequent decisions, the U.S. Court of Appeals for the D.C. Circuit and Supreme Court allowed the stay and the moratorium to remain in place. 

That moratorium expired on July 31, and the CDC decided on Aug. 3 to provide an eviction moratorium for 60 days for most renters. The Alabama Association of Realtors and Georgia Association of Realtors asked the court to lift the stay on Aug. 4. 

U.S. District Judge Dabney L. Friedrich said it was outside the district court’s authority to lift a stay, in light of the decisions from the higher courts. “The Court’s hands are tied,” she wrote in the opinion. 

The new moratorium applies only to jurisdictions experiencing substantial or high levels of community spread of the COVID-19 virus. Although narrowed, the ban still covers about 90 percent of renters, according to the Biden administration.

In their request to the court, the Realtor associations cited an opinion by Supreme Court Justice Brett M. Kavanaugh issued in June about the previous moratorium. Kavanaugh was among the five justices who voted to leave the stay and moratorium in place, but he said he would change his vote if the CDC extended the protections again.

Friedrich said Kavanaugh’s vote, not his statements, bound the district court. 

“The votes of dissenting Justices may not be combined with that of a concurring Justice to create binding law,” she said.

Still, the moratorium is likely to face challenges in the future. Friedrich said the new moratorium was legally a continuation of the original moratorium and would face the same legal issues. The district court had ruled against the eviction moratorium, and the ban has faced challenges in other circuits, including the 6th Circuit Court that ruled against the protections.

Even Biden has acknowledged that the new moratorium may be on shaky legal ground. 

“Whether that option will pass constitutional measure with this administration, I can’t tell you. I don’t know,” Biden said of the new moratorium on Aug. 3. “There are a few scholars who say it will and others who say it’s not likely.” 

White House Press Secretary Jen Psaki issued a statement after the court ruling Friday. "We are pleased that the district court left the moratorium in place, though we are aware that further proceedings in this case are likely," she said. 

States’ eviction bans have also run into legal trouble. The Supreme Court, in a 6-3 decision Thursday, struck down parts of New York’s eviction moratorium. The court overturned a provision of the moratorium that allowed tenants to self-attest that they had experienced financial hardship because of the pandemic without requiring supporting documentation. 

New York’s moratorium is scheduled to expire at the end of the month. 

Todd Ruger contributed to this report.