The Volokh Conspiracy
Mostly law professors | Sometimes contrarian | Often libertarian | Always independent
On Wednesday, in Brown v. US Dept. of Health and Human Services, the US Court of Appeals for the 11th Circuit upheld a trial court decision refusing to issue a preliminary injunction against the Centers for Disease Control nationwide eviction moratorium.
The ruling is obviously a setback for those challenging the eviction moratorium in court. However, its impact is likely to be relatively minor, because the court does not actually address the legality of the moratorium. Instead, denies the plaintiffs' appeal purely because they failed to meet a procedural requirement for a preliminary injunction: proving that they have suffered an "irreparable injury":
When a district court denies a preliminary injunction, the plaintiffs have a choice: they can appeal the denial, or they can proceed with trying the case on the merits. If they choose to appeal, they often face an uphill battle. Rather than just persuade the judge on the merits, the plaintiffs must show that they are likely to suffer an irreparable injury without a preliminary injunction, that the balance of the equities tips in their favor, and that a preliminary injunction would not be adverse to the public interest. Because the plaintiffs here have failed to establish at least one of those requirements—irreparable injury—we affirm.
The majority, concurring, and dissenting opinions engage in a long and detailed debate over what qualifies as an irreparable injury and whether the plaintiffs (a group of landlords) have met the requirements. I will leave that procedural issue to those with greater expertise on the subject.
It's worth emphasizing, however, that the majority did not rule on the issue of whether the CDC moratorium is actually legal or not, even though the trial court decision they are reviewing did address that question. The appellate court will only take up that issue after the trail court reaches a final decision on the merits, and it (presumably) gets appealed.
However, the majority opinion by Judge Grant did strongly suggest they disagree with the trial judge on this point, and believe the moratorium is indeed illegal:
We have doubts about the district court's ruling on the first [preliminary injunction] factor: whether the plaintiffs are likely to succeed on the merits. The only statutory basis the government identifies for the CDC's order is 42 U.S.C. § 264(a). At first glance, that provision could be read to vest the CDC with general authority to enact any and all regulations that "are necessary to prevent the introduction, transmission, or spread of communicable diseases" between states. 42 U.S.C. § 264(a). Indeed, the government was unwilling to articulate any limits to the CDC's regulatory power at oral argument. But in the very next sentence, Congress specified the means that the CDC can use to carry out that authority: the "inspection, fumigation, disinfection, sanitation, pest extermination, destruction of animals or articles found to be so infected or contaminated as to be sources of dangerous infection to human beings, and other measures, as in his judgment may be necessary." Id. In other words, the second sentence of § 264(a) appears to clarify any ambiguity about the scope of the CDC's power under the first. In any event, despite our doubts, we need not consider or resolve the scope of the CDC's statutory authority.
A preliminary injunction requires more than a likelihood of success on the merits—much more….
These "doubts" are similar to those advanced in several cases where courts have ruled against the CDC. have written about these cases and the issues they raise in numerous previous posts, including here, here, and here.
In her dissenting opinion, Judge Elizabeth Branch does reach the merits, and concludes that the order is illegal (using similar, but more detailed, reasoning). Thus, when and if this case returns to the Eleventh Circuit for a decision on the merits, it seems highly likely the plaintiffs will prevail. In the meantime, however, they won't get the benefit of a preliminary injunction preventing enforcement of the CDC order.
Last month, the Supreme Court similarly refused to mandate a preliminary injunction against the order, even though at least five of the nine justices apparently concluded that the order is illegal.
The eviction moratorium cases raise major separation of powers issues that go far beyond the details of the order. I have written about them in the earlier posts linked above. For a summary of the big-picture issues, see my very first post on the subject, written last September, when the moratorium was first instituted under the Trump administration (it was later revived and extended under Biden).
The current iteration of the order is scheduled to expire July 31. But, for reasons I explained here, that may not completely end the litigation over its legality.
NOTE: The plaintiffs in some of the lawsuits against the eviction moratorium are represented by the Pacific Legal Foundation, where my wife works (though she is not part of the litigation team handling the issue). I myself have played a minor (unpaid) role in advising PLF on this litigation.