The Volokh Conspiracy
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For some reason, legal commentators seem to overlook the U.S. Court of Appeals for the Sixth Circuit when discussing legal decisions concerning the CDC eviction moratorium.
For example, in an August 6 Boston Globe op-ed defending the legality of a moratorium, Harvard law professor Laurence Tribe wrote:
the highest court to issue a binding ruling on the merits of the legal issue, the D.C. Circuit, concluded the agency had ample authority to issue the eviction ban.
This is doubly wrong. First, the D.C. Circuit did not issue a "binding ruling on the merits," as the Order itself makes clear. Before the court was a motion to vacate the district court's stay of a decision concluding the moratorium was unlawful. In assessing this question, the D.C. Circuit panel concluded that those challenging the moratorium were unlikely to succeed on the merits, but it also made clear that it was "not resolving the ultimate merits" of the challenge. I am not sure how the court could have been any more explicit on this point.
Second, and more importantly, the Tribe op-ed ignored that another federal appellate court—the U.S. Court of Appeals for the Sixth Circuit—had issued a binding ruling on the merits (as I noted here) and concluded that the moratorium exceeded the agency's statutory authority. In Tiger Lily v. U.S. Dept of Housing and Urban Development, a unanimous panel of the Sixth Circuit concluded that the moratorium was invalid on the merits. This decision followed, and was separate from, the court's prior decision considering the challenge's likelihood of success in the context of a stay application (and also reaching the opposite conclusion from the D.C. Circuit). (For the record, there was also an Eleventh Circuit decision, but it did not focus on the merits of the challenge.)
So, unless one wants to argue that the D.C. Circuit is a "higher" court than the Sixth Circuit, "the highest court to issue a binding ruling on the merits of the legal issue" actually ruled against the CDC eviction moratorium.
Tribe is not the only one to overlook the Sixth Circuit's decision on the merits of the CDC moratorium. In a recent episode of their otherwise excellent Supreme Court podcast, Divided Arguments, Dan Epps and Will Baude noted the two preliminary decisions of the D.C. and Sixth Circuits assessing the challenges' likelihoods of success, but also overlooked the Sixth Circuit's merits holding.
Relevant state courts are not overlooking the Sixth Circuit's decision, however. Indeed, some courts are refusing to follow the new eviction moratorium because (in their view) it is unlawful under the Sixth Circuit's decision. As the AP reports:
The 6th U.S. Circuit Court of Appeals, which encompasses Tennessee, Kentucky, Michigan and Ohio, ruled in late July in a separate lawsuit that CDC lacks the authority to issue pauses on eviction. And the CDC order itself says it does not apply "to the extent its application is prohibited by federal court order."
As a result, Barbara Peck, a spokeswoman for the Tennessee state court system, said Wednesday that lawyers for courts in her state had "advised that it is not applicable in Tennessee."
Two large Ohio court systems on Thursday issued conflicting decisions regarding the new moratorium. In Franklin County, home to state capital Columbus, County Administrative Judge Ted Barrows said the moratorium wouldn't be enforced based on last month's 6th Circuit decision.
But in Cuyahoga County, home to Cleveland, the new moratorium will be enforced, according to a release from the office of Housing Court Judge Mona Scott, who noted the county has the second-highest coronavirus transmission level in Ohio.
Most public attention has focused on the D.C. litigation, in part because the D.C. case was the first to reach the Supreme Court (and the renewed D.C. challenge may be the first to One First Street again). But it's not the only game in town, and unless and until a case does reach the Supreme Court, there is no reason to privilege the decisions of D.C. courts, particularly when other courts are reaching the merits of the issue in question.
[Note: All of these decisions concern the lawfulness of the CDC eviction moratorium that expired on July 31, not the newer, slightly narrower moratorium the Biden Administration issued this month. On the merits, the two moratoria present almost identical questions, though perhaps not on questions of preliminary relief and the like.]
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