Last week, a panel for the Eleventh Circuit in Brown v. Secretary of HHS determined that the U.S. Center for Disease Control likely lacked any power to issue its nationwide eviction moratorium, but two of the three judges still refused to block CDC’s unlawful order. The panel’s decision has the feel of a court constructing a procedural excuse to avoid ruling definitively that the government violated the law in any part of its handling of COVID-19. This unwillingness to hold the Executive Branch accountable for the unlawful aspects of its pandemic response will be a lasting legacy of the judiciary.
After 16 months of litigation nationwide challenging countless administrative actions, precious few courts have ruled that the government violated the law. Faced with legitimate claims of administrative overreach, the judiciary time and again placed litigants in a COVID-22 (to steal a term from my colleague John Vecchione). When plaintiffs sought immediate relief from time-sensitive pandemic orders, courts routinely cited the preliminary status of a case as a reason to deny relief. But then, by the time courts would be willing to rule on the merits, the government ended the challenged practice and asked the court to dismiss the case as moot. The courts have been all too happy to oblige.
The Brown case could now be doomed to that exact fate. Just over two weeks before the CDC order’s scheduled July 31 expiration date, the Eleventh Circuit denied relief to housing providers, reasoning that it was too soon to consider the merits of the case and that the housing providers would have to wait to get a final judgment on the merits first. But we know by now what happens next. On July 31, the CDC will ask the court to dismiss the case against it as moot. In fact, it has already been running out the clock in NCLA’s class action against the eviction moratorium, seeking and receiving two delays on the theory that it shouldn’t even have to answer a complaint filed over four months ago because the order will expire before long. Just as countless other plaintiffs during the pandemic, the housing providers challenging the CDC will be left without a ruling that the federal government acted unlawfully in violation of their rights. The judiciary’s refusal to hold the executive accountable denies justice to the parties before the court and causes more power to accumulate in administrative officials. This administrative creep that results from hapless decisions, like the Eleventh Circuit’s in Brown, further undermines the separation of governmental powers that protects civil liberties.
The Panel’s Decision in Brown
In a terse, 15-page majority opinion, Judge Britt Grant told the housing providers who brought the suit that they weren’t wrong; they just appealed too soon. Over the dissent of Judge Elizabeth Branch, the two-judge majority ruled that the housing providers who brought the case were not entitled to block the CDC order—despite the likelihood that order is unlawful—because the plaintiffs had not done the impossible and proved (at the preliminary-injunction stage, no less) that their insolvent tenants will remain insolvent for years after the moratorium ends.
Without explaining how the government might ever repair the damage its unlawful order caused housing providers, the majority simply declared that the government’s depriving housing providers of their private property and violating their constitutional rights were not irreparable harms. Nor did the majority think the housing providers’ likely inability to recover back rent “clearly established” that they were suffering an irreparable harm. In the majority’s view, the tenants’ sworn declarations that they were unable to pay even $1 in rent and would become homeless if evicted “is a flimsy basis for drawing the necessary conclusions” that the tenants won’t be able to pay back rent once the moratorium ends. More broadly, the majority insisted that it’s impossible to know what a tenant’s financial situation will be after the moratorium ends “[w]ithout any information about a tenant’s financial or employment picture.” The majority concluded by shifting blame to the housing providers for pursuing a preliminary injunction, asserting that doing so meant “they needed to win on more than just the merits.” In other words, the majority punished the housing providers for running into the roadblock the majority built in their path to relief.
Judge Branch explained in dissent that she would have enjoined the CDC order because CDC exceeded its statutory authority and the plaintiffs demonstrated that “money damages against their insolvent tenants would be an inadequate remedy for their financial harms.” She recognized that the housing providers sought “not just to remedy past harms” of unpaid rent, “but also to ‘staunch the flow of ongoing future losses’ for the duration of the moratorium.’” The CDC Order, Judge Branch reasoned, makes housing providers “‘involuntary creditors’ who are being compelled to incur additional debts that they may never be able to collect.”
Unlike the majority and the district court below, Judge Branch would not have required the housing providers to prove that their tenants will remain insolvent well into the future. She recognized that the “rather remarkable” CDC declaration that tenants signed under penalty of perjury—“along with the fact that their tenants had paid nothing towards their monthly rent—demonstrates that their tenants are insolvent and that a future money judgment will not be collectable.” She explained: “Based on the conditions of the CDC Order, we know that the tenants are unable to pay debts as they come due, have no available money, no discretionary expenses that can be cut back on, no illiquid assets that can be sold, and no ability get a loan to cover rental expenses; and cannot afford to move to the cheapest available residential property that meets occupancy standards.” That a tenant might get a new job in the future and later become able to satisfy their debts was purely speculative and would require the court to “guess whether the tenants are likely to receive job offers, promotions, raises, or additional shifts based on their occupation or current employment status.” Judge Branch criticized the court’s demand that plaintiffs “clearly establish” something so speculative when a court could never “reliably predict” a tenant’s future job prospects. She admonished that the court “cannot demand that the landlords continue to incur further debts from insolvent tenants based on even the most well-reasoned speculation about the tenants’ future job prospects.”
Judicial Abdication During the Pandemic
The Eleventh Circuit’s application of its “clearly established likelihood” standard in Brown is just the latest in a trend line of pandemic cases in which courts have hidden behind judge-made technicalities to avoid holding the executive branch accountable for its lawless actions. And Brown may be the worst yet of these decisions, considering the court told the plaintiffs they appealed too soon when the order was set to expire two weeks later.
When the pandemic began, courts (following the Supreme Court’s lead) were very deferential to the decisions of executive officials. Chief Justice Roberts, explained his belief that an “unelected federal judiciary” should not second-guess these administrative decisions because “local officials are actively shaping their response to changing facts on the ground.” That logic is tenuous at best considering the judiciary’s job is quite literally to second-guess the challenged actions of officials. And determining that a particular administrative action exceeded a statutory authorization or violated the Constitution often does not even require courts to weigh in on the scientific data. Emergencies don’t create new executive power, and we depend on the judiciary to enforce the law in the face of crises.
As the pandemic dragged on, and facts on the ground came into focus, any excuse for continued judicial abdication really rang hollow. For instance, when CDC issued its eviction moratorium around Labor Day 2020, we were already six months into the pandemic and the facts were mostly settled. NCLA sued the CDC almost immediately on behalf of several small-scale housing providers and a national association, asking the Northern District of Georgia (CDC’s home district) to declare that the moratorium was unlawful and enjoin its enforcement. The lawsuit wasn’t based on CDC’s interpretation of any facts on the ground; rather, the complaint alleged that the statute on which CDC relied for its authority did not empower the agency to delve into housing policy or prohibit state courts from carrying out their normal processes. Considering the urgent nature of the suit—the CDC Order denied housing providers access to their private property and caused them to lose more money each passing month—the housing providers sought a preliminary injunction on about half the claims they raised in their complaint.
The trial court denied the injunction, ruling that CDC acted within its authority—a decision that several other federal judges would soon disagree with. The housing providers appealed the denial to the Eleventh Circuit, and by the time the parties briefed the appeal over February and March, vaccines became widely available and public fear of the virus began to lessen.
With these improved facts on the ground, the government’s pleas for judicial abstention lost their persuasiveness. So, the government changed tacks. After arguing for the better part of a year that judges shouldn’t interfere with administrative actions because COVID-19 is dangerous, the government pivoted—almost overnight—to exploit a different judicial bias. The government’s new strategy was to say, “things are improving, and we won’t need these orders for much longer, so there’s no reason for courts to dig into all these complicated questions about governmental power when the court could just dismiss the case as moot in a month or so.” Once again, courts, taking their cues from the Supreme Court, have been all too happy to oblige. In a case related to Brown, five Justices agreed that the CDC likely lacked any power to impose the moratorium, but Justice Kavanaugh (for whom Judge Grant clerked) voted against enjoining the moratorium because “CDC plans to end the moratorium in only a few weeks.” Apparently, it’s okay that the government violates the law if it plans to stop soon. Although Judge Grant did not expressly cite her former boss’s reasoning, her opinion in Brown has the same tenor and effect.
Justice Kavanaugh’s position counseling against judicial intervention when the government’s unlawful actions are nearly complete falls prey to the government’s Goldilocks strategy (it’s too soon for the courts to intervene until it’s too late to rule at all) and leaves nearly everyone who suffered under the government’s unlawful orders without any relief.
Most times the government issues an unlawful order, citizens cannot seek money damages for the harm they incur. Relief is limited to an injunction stopping the unlawful action and a declaratory judgment ruling that the government violated the law. For many plaintiffs, a judicial declaration that the government acted unlawfully in violation of their rights has intrinsic value. These plaintiffs have little hope of being made whole financially, but a court order vindicating their rights means something. And the court’s declaration benefits the rest of society by creating precedent and drawing a line in the sand that the government cannot cross next time.
The judiciary, however, has been all too eager to dismiss cases as soon as the government promises it will behave from now on. Like the overly onerous burden the Eleventh Circuit placed on the Brown plaintiffs to receive preliminary relief, the judiciary’s application of its mootness doctrine to government officials is also a judge-made technicality. Traditionally, courts will not dismiss a case as moot when the defendant has voluntarily stopped the challenged behavior—particularly when the defendant can easily resume its behavior once the case is over. Otherwise, defendants could easily evade judgment by temporarily changing their behavior. Yet, when the government is the defendant, courts seem to assume that any voluntary cessation is permanent and was done in good faith, so they often dismiss cases against the government as soon as it stops its challenged behavior.
Take Carmen’s Corner Store v. SBA, for example—NCLA’s case against the Small Business Administration. Without any lawful authority to do so, SBA issued a rule denying Paycheck Protection Program loans to a long list of businesses, including those owned by someone with a criminal record. NCLA and the ACLU both sued in the District of Maryland, asking the court to declare that SBA’s rule was unlawful and to require that SBA extend PPP loans to those businesses it wrongfully excluded. The plaintiffs had different criminal records, so SBA’s rule excluded them for different reasons. Surely by mere coincidence, though, SBA amended its rule several times during the litigation to create special carve-outs that made it so the PPP exclusion would no longer apply to business owners with the plaintiffs’ precise criminal histories. At no time did SBA disavow its claimed authority to exclude the plaintiffs from future pandemic-relief programs—let alone those still wrongfully excluded from PPP loans who were not party to the lawsuit. On the contrary, SBA said it had done a “good deed” but maintained that its regulations permit it to deny loans to anyone with a criminal history. Nevertheless, the agency asked the court to dismiss the case. To the credit of Judge Catherine Blake, she sided with NCLA as a preliminary matter and required SBA to preauthorize PPP loans for the specific plaintiffs in the case, but she stopped short of ruling outright that SBA violated the law.
NCLA’s clients, Altimont Wilks and his businesses, Carmen’s Corner Store and Retail4Real, asked the court to proceed to the merits, arguing that “SBA’s voluntary cessation of its unlawful behavior, under threat of lawsuit, does not deprive th[e] Court of its jurisdiction to say that SBA’s now-superseded Criminal History Rule(s) were unlawful—particularly considering the likelihood that SBA could repeat that conduct absent a court order.” The court, however, took SBA at its word and dismissed the case as moot, leaving the agency free going forward to continue asserting power that Congress never gave the agency.
Unless the judges in Brown recognize their authority—and responsibility—as Article III judges to rule that the eviction moratorium violated the law and the rights of housing providers, the CDC can also resume its unlawful housing program in the future.
Vaccinations have helped slow the spread of COVID-19, but the economic impact of a year in lockdown persists. Unsurprisingly, government officials like New Jersey Governor Phil Murphy are already arguing that the economic consequences are also an emergency and that the government should not have to wait for an economic collapse to respond to this next phase of the emergency (while simultaneously arguing that courts should dismiss the pending suits against him as moot). Until the judiciary holds the Executive Branch to account for its violations of the law, administrative officials will remain emboldened to exceed the statutory and constitutional constraints on their authority, to the detriment of civil rights and our constitutional structure.