Supreme Court Leaves Eviction Moratorium in Place Pending Appeal in Alabama Association of Realtors v. U.S. Department of Health and Human Services

On May 5, 2021, the United States District Court for the District of Columbia issued an opinion that the Centers for Disease Control and Prevention ("CDC") exceeded its statutory authority by issuing and extending a nationwide moratorium on evictions during the COVID-19 pandemic. See Alabama Association of Realtors v. U.S. Department of Health and Human Services, No. 20-cv-3377 (DLF) (D.D.C. May 5, 2021). A judgment was entered vacating the moratorium, which was set to expire on June 30, 2021. However, the court entered a stay of this judgment pending the outcome of an appeal to the U.S. Court of Appeals for the D.C. Circuit.

The plaintiffs appealed this stay to the D.C. Circuit, which declined to vacate the stay, and then filed an application to the United States Supreme Court for vacatur on June 2, 2021. Emergency Application for a Vacatur of the Stay Pending Appeal, Alabama Association of Realtors v. U.S. Department of Health and Human Services, No. 20A169 (June 2, 2021). While this application was pending, the CDC announced another extension to the eviction moratorium, extending the rent protections through July 31, 2021. Applicants cited this extension as support for the need of a vacatur of the stay on the district court’s judgment.

The Supreme Court was not persuaded. On June 29, 2021, the Supreme Court denied the application to vacate the stay on the eviction moratorium in a 5-4 decision. Alabama Association of Realtors v. U.S. Department of Health and Human Services, No. 20A169, 594 U.S. __ (2021). The only written opinion accompanying the denial was written by Justice Kavanaugh, concurring with the majority. Justice Kavanaugh emphasized that he agreed with the holding of the district court and thought that the CDC had exceeded its statutory authority with the nationwide moratorium. However, given that the moratorium was set to end “in only a few weeks,” denying the application to vacate the stay would “allow for the additional and more orderly distribution of the congressionally appropriated rental assistance funds.” Justice Kavanaugh concluded that “clear and specific congressional authorization (via new legislation) would be necessary for the CDC to extend the moratorium past July 31.” Justices Thomas, Alito, Gorsuch, and Barrett would have granted the application for vacatur.

Thus, the CDC eviction moratorium remains in place until its current deadline on July 31, 2021. Given Justice Kavanaugh’s reliance on this deadline in his decision to deny the application, it seems unlikely that the moratorium will be further extended without congressional intervention.

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