USCA Case #21-5093 Document #1910536 Filed: 08/17/2021 Page 1 of 18

[ORAL ARGUMENT NOT YET SCHEDULED]

No. 21-5093

IN THE UNITED STATES COURT OF APPEALS

FOR THE DISTRICT OF COLUMBIA CIRCUIT

ALABAMA ASSOCIATION OF REALTORS®, et al.,

Plaintiffs-Appellees,

v.

U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES, et al.,

Defendants-Appellants

On Appeal from the United States District Court

for the District of Columbia

REPLY IN SUPPORT OF EMERGENCY MOTION

TO VACATE STAY PENDING APPEAL

Brett A. Shumate
Charlotte H. Taylor
Stephen J. Kenny
J. Benjamin Aguiñaga
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001
(202) 879-3939
bshumate@jonesday.com
Counsel for Appellees
USCA Case #21-5093 Document #1910536 Filed: 08/17/2021 Page 2 of 18

TABLE OF CONTENTS

Page
TABLE OF AUTHORITIES ...............................................................................ii
INTRODUCTION.................................................................................................. 1
ARGUMENT .......................................................................................................... 2
I. The Government Has Not Met The Criteria For A Stay
Pending Appeal ............................................................................................... 2
II. The Law-of-the-Case Doctrine Has No Preclusive Effect Here .............. 5
CONCLUSION..................................................................................................... 12
CERTIFICATE OF COMPLIANCE ............................................................... 13
CERTIFICATE OF SERVICE ......................................................................... 14

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TABLE OF AUTHORITIES

Page(s)
CASES
Belbacha v. Bush,
520 F.3d 452 (D.C. Cir. 2008)......................................................................... 5, 6
Berrigan v. Sigler,
499 F.2d 514 (D.C. Cir. 1974)............................................................................. 6
CASA de Maryland, Inc. v. Trump,
971 F.3d 220 (4th Cir. 2020) ............................................................................... 8
Christianson v. Colt Indus. Operating Corp.,
486 U.S. 800 (1988).................................................................................. 5, 10, 12
Chrysafis v. Marks,
No. 21A8, 2021 WL 3560766 (U.S. Aug. 12, 2021) ........................................... 4
FTC v. Am. Tobacco Co.,
264 U.S. 298 (1924).............................................................................................. 2
Halperin v. Kissinger,
807 F.2d 180 (D.C. Cir. 1986)............................................................................. 5
King v. Palmer,
950 F.2d 771 (D.C. Cir. 1991) (en banc)............................................................ 9
Marks v. United States,
430 U.S. 188 (1977).......................................................................................... 8, 9
Natural Res. Def. Council, Inc. v. Winter,
508 F.3d 885 (9th Cir. 2007) ............................................................................... 7
Oklahoma Press Publ’g Co. v. Walling,
327 U.S. 186 (1946).............................................................................................. 2
Paul v. United States,
140 S. Ct. 342 (2019) ........................................................................................... 3
Sherley v. Sebelius,
689 F.3d 776 (D.C. Cir. 2012)............................................................................. 6
Tiger Lily, LLC v. HUD,
--- F.4th ---, 2021 WL 3121373 (6th Cir. July 23, 2021) .............................. 2, 4

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TABLE OF AUTHORITIES
(continued)
Page(s)
TRW Inc. v. Andrews,
534 U.S. 19 (2001)................................................................................................ 3
United States v. Duvall,
740 F.3d 604 (D.C. Cir. 2013)................................................................... 8, 9, 10
United States v. Epps,
707 F.3d 337 (D.C. Cir. 2013)............................................................................. 9
Winslow v. FERC,
587 F.3d 1133 (D.C. Cir. 2009)........................................................................... 9
STATUTES
42 U.S.C. § 264 ............................................................................................... 2, 3, 11

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INTRODUCTION

Given that the government asks this Court to ignore the views of a

majority of the Supreme Court, one would expect a robust defense of the

CDC’s latest extension of the eviction moratorium. Instead, its opposition

offers little more than four pages of argument noteworthy only for what is left

uncontested. The government does not deny that the CDC’s most recent order

is merely an extension of a moratorium that a majority of the Supreme Court

has already concluded is likely unlawful. It does not acknowledge, much less

explain, its dramatic reversal regarding whether such an extension would be

legally permissible. And it does not defend the President’s admission that this

extension is unlikely to survive judicial scrutiny but would buy the government

more time to distribute rental assistance.

Instead, the government urges this Court to leave the stay undisturbed

merely because it did so at the start of June—before a majority of the Supreme

Court made clear that the moratorium could not remain in place past July 31,

before the government repeatedly announced that it lacked authority to adopt

even a narrower moratorium, and before the President conceded that the

CDC’s order (and this litigation) was merely a delay tactic. Nothing in the

law-of-the-case doctrine compels such a manifestly unjust result.

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ARGUMENT

I. The Government Has Not Met The Criteria For A Stay Pending Appeal.

The government does not deny that it must satisfy all four traditional

factors to justify a continuation of the stay. Mot.12. Yet it makes barely any

attempt to do so, offering only a handful of points that collapse under scrutiny.

A. On the merits, the government asserts that “ ‘the plain text of 42

U.S.C. § 264(a)’ ” authorizes the moratorium, Opp.13, but fails to offer a good

explanation for how that reading avoids making the rest of § 264 superfluous,

Mot.14. At most, it claims that the inspection measures enumerated in

§ 264(a)’s second sentence “ ‘required express congressional authorization

under the Fourth Amendment’ ” under Oklahoma Press Publishing Co. v.

Walling, 327 U.S. 186 (1946), and FTC v. American Tobacco Co., 264 U.S. 298

(1924). Opp.14. But the Solicitor General declined to press that theory before

the Supreme Court, and for good reason. As the Sixth Circuit recently

explained, “[n]either case”—one of which was “decided in 1946, two years after

the Public Health Act of 1944”—“placed Congress on notice that giving the

Secretary authority to order inspections” would even “implicate the Fourth

Amendment.” Tiger Lily, LLC v. HUD, --- F.4th ---, 2021 WL 3121373, at *3

n.2 (6th Cir. July 23, 2021). And even if that account were plausible on its face,

it would render “more than half of th[e] text” of § 264 a historical footnote.

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TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (applying canon against

superfluity to construction that would make text “ ‘insignificant’ ”).

Superfluity aside, the government makes no attempt to square its

position with basic federalism and nondelegation canons, and it dismisses the

“major-questions doctrine”—the basis of Justice Kavanaugh’s concurring

opinion—as irrelevant in light of § 264’s “plain text.” Opp.14 (citations

omitted); see Mot.14-16. But the major-questions doctrine required Congress

to “expressly and specifically delegate” the authority to impose an eviction

moratorium, Paul v. United States, 140 S. Ct. 342 (2019) (statement of

Kavanaugh, J., respecting the denial of certiorari)—a description that does not

remotely describe § 264(a)’s delegation to the CDC to “make and enforce such

regulations as in [its] judgment are necessary to prevent the introduction,

transmission, or spread of communicable diseases.” The government also

suggests that Congress “embrace[d]” the CDC’s unlawful action by

acknowledging in appropriations legislation that the agency had issued the

moratorium “ ‘under’ ” § 264. Opp.14. But as the Sixth Circuit explained, that

legislation at most “gave force to the otherwise-unlawful order” until “January

31”; it “did not purport to alter the meaning of § 264(a)” or “grant the CDC

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the power to extend the order further than Congress had authorized.” Tiger

Lily, 2021 WL 3121373, at *5.

B. The government has even less to say on the equities. It does not

dispute that a stay would substantially and irreparably injure Plaintiffs, that

the public interest rises and falls with the merits, or that the President’s

acknowledged use of litigation to buy time to extend an unlawful policy is

reason alone to end the stay. Mot.17-20. Instead, it emphasizes the uptick in

cases from the Delta variant, see Opp.16, but never explains why the CDC was

evidently willing to tolerate the risks of that strain until August 3. As the

government does not deny, the agency was aware of these risks both when it

announced in June that the moratorium would expire on July 31 and when it

allowed the moratorium to temporarily lapse after that date. Mot.19. In any

event, concerns about new variants evidently did not stop the Supreme Court

from enjoining the enforcement of part of New York’s eviction moratorium,

and there is no reason to conclude that those concerns will have any more

purchase here. Compare Chrysafis v. Marks, No. 21A8, 2021 WL 3560766, at

*1 (U.S. Aug. 12, 2021), with N.Y. Opp. at 14, Chrysafis, supra (Aug. 4, 2021).

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II. The Law-of-the-Case Doctrine Has No Preclusive Effect Here.

Ultimately, the government’s only real argument is that the law-of-the-

case doctrine bars this Court from lifting the stay now because a motions panel

declined to do so in early June. But that doctrine “ ‘merely expresses the

practice of courts generally to refuse to reopen what has been decided,’ ” and

therefore leaves this Court with “the power to revisit prior decisions of its own

or of a coordinate court in any circumstance.” Christianson v. Colt Indus.

Operating Corp., 486 U.S. 800, 817 (1988); see Halperin v. Kissinger, 807 F.2d

180, 192 (Scalia, Circuit Justice, D.C. Cir. 1986) (“We have acknowledged in

the past that the law of the case is not an inexorable command that rigidly

binds a court to its former decisions”) (cleaned up). There are at least two

reasons why that discretionary doctrine does not bind this Court here.

A. To start, this Court has squarely held that “[a]n order denying

preliminary relief”—which unquestionably describes the motions panel’s June

ruling—“ ‘does not constitute the law of the case.’ ” Belbacha v. Bush, 520 F.3d

452, 458 (D.C. Cir. 2008); see Mot.21-22. Accordingly, even the government

admits that “[i]t is ‘of course’ true that the motions panel’s conclusions will not

bind the merits panel, as the motions panel explicitly recognized.” Opp.14.

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The government nevertheless insists that these conclusions are binding

now because this case is “not before the merits panel.” Id. But it offers no

authority to support that distinction, which is difficult to square with the

unqualified language in Belbacha and other precedents. See, e.g., Sherley v.

Sebelius, 689 F.3d 776, 782 (D.C. Cir. 2012) (“An appellate court in a later

phase of the litigation … need not bind itself to the time-pressured decision it

earlier made”) (emphasis added); Berrigan v. Sigler, 499 F.2d 514, 518 (D.C.

Cir. 1974) (“The decision of a trial or appellate court whether to grant or deny

a preliminary injunction does not constitute the law of the case for the

purposes of further proceedings.”) (emphasis added).

The distinction also makes little sense. The preliminary-relief

“exception to the law-of-the-case doctrine arises from the nature” of the first

panel’s ruling, Sherley, 689 F.3d at 781, not the stage of the proceedings when

the case reaches the second panel. Specifically, the exception is based on the

fact that in considering a request for “preliminary relief,” appellate courts are

often left with “briefing and argument abbreviated or eliminated by time

considerations” and must merely “predict[] … that the plaintiffs probably or

likely will or will not succeed on the merits.” Id. at 782. Those concerns exist

whether the preliminary-relief decision is invoked at the merits stage or

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before. Presumably, that is why a panel considering a preliminary-injunction

appeal is not bound by the conclusions of an earlier motions panel staying (or

declining to stay) that injunction. See, e.g., Natural Res. Def. Council, Inc. v.

Winter, 508 F.3d 885 (9th Cir. 2007) (resolving preliminary-injunction appeal

and vacating motions panel’s stay of the injunction).

B. In any event, a motions panel’s order cannot be binding in light of

changed circumstances. Mot.22-24. Otherwise, this Court would be powerless

to lift the stay even if 99% of the population were vaccinated, the daily average

of cases plummeted to levels not seen since February 2020, and the CDC

announced that the moratorium would be extended indefinitely until sufficient

economic recovery had occurred. See Mot.21. The government agrees that

the law-of-the-case doctrine must yield in light of intervening developments,

but contends that there has been no relevant change in circumstances here—

notwithstanding the significant actions taken by the Supreme Court and the

Executive Branch in the wake of the motions panel’s decision. See Opp.15.

That position suffers from at least two fundamental flaws.

1. a. To start, the government’s request that this Court disregard

the views of a majority of the Supreme Court is mystifying. Although the

government contends that the Supreme Court’s ruling is not technically

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“ ‘binding,’ ” Opp.15, it has no response to the fact that even non-binding

authority can constitute a relevant intervening development in the law, see

Mot.22-23. That may explain why in the days leading up to August 3, the

Executive Branch repeatedly stated that it could not extend the moratorium—

even in a slightly narrower form—in light of the Supreme Court’s ruling.

Mot.7-9. Whether or not this Court has the “technical authority” to depart

from that ruling, it should not “deny[] the Supreme Court action its obvious

and relevant import.” CASA de Maryland, Inc. v. Trump, 971 F.3d 220, 230

(4th Cir.) (Wilkinson, J.), reh’g en banc granted, 981 F.3d 311 (4th Cir. 2020).

To justify its about-face, the government invokes (Opp.15) this Court’s

approach to Marks v. United States, 430 U.S. 188 (1977), but that misses the

forest for the trees. Whether or not Justice Kavanaugh’s opinion is formally

controlling under Marks—or whether Marks even governs Supreme Court

rulings concerning applications for emergency relief—there is no conceivable

justification for a lower court to “decide a case contrary to how a majority of

the Supreme Court … would decide the case.” United States v. Duvall, 740

F.3d 604, 617 n.8 (D.C. Cir. 2013) (Kavanaugh, J., concurring in the denial of

rehearing en banc). Such an approach would not respect “[v]ertical stare

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decisis”—either “in letter” or “in spirit.” Winslow v. FERC, 587 F.3d 1133,

1135 (D.C. Cir. 2009) (Kavanaugh, J.).

In any event, the government misreads this Court’s precedents.

According to the government, this Court has held that “the votes of dissenting

Justices may not be combined with that of a concurring Justice to create

binding law.” Opp.15 (quoting App.68a). To support that proposition, the

government points to the following language from King v. Palmer, 950 F.2d

771 (D.C. Cir. 1991) (en banc): “[T]he narrowest opinion … must embody a

position implicitly approved by at least five Justices who support the

judgment.” Id. at 781; accord United States v. Epps, 707 F.3d 337, 348 (D.C.

Cir. 2013). But as then-Judge Kavanaugh explained, there is no need to “read

King to direct that we decide a case contrary to how a majority of the Supreme

Court in the governing precedent would decide the case.” Duvall, 740 F.3d at

617 n.8 (Kavanaugh, J., concurring in the denial of rehearing en banc). Rather,

all that King establishes is that “looking to just the concurrence and dissent

alone will never be enough to determine whether one of the opinions is the

binding opinion under Marks.” Id. That is because “an opinion is the binding

opinion only when it will lead to results with which a majority of the Court

would agree in all future cases,” and “that analysis can be logically conducted

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only by looking at all of the opinions in the Supreme Court case at issue.” Id.

And here, that opinion is plainly Justice Kavanaugh’s concurrence—as the

White House itself has acknowledged. This Court should therefore “strive to

reach the result that a majority of the Supreme Court would have reached

under the opinions in the governing precedent.” Id. at 616.

Indeed, by stating that he voted “at this time” to deny Plaintiffs’

application, App.56a, Justice Kavanaugh necessarily indicated that Plaintiffs

could again ask the Supreme Court to vacate the stay at a later date—a point

that the government evidently does not dispute. See Opp.5. Yet under the

government’s view of the law-of-the-case doctrine, Plaintiffs were required to

undergo time-consuming proceedings in the lower courts before seeking this

relief even though those courts were required to rule against them. This Court

should not use a doctrine meant to increase the “efficiency of the judicial

process,” Christianson, 486 U.S. at 816, to compel such a meaningless ritual.

b. The government also suggests that “it is impossible to know” how

the Supreme Court would resolve this request to vacate the stay. It should

have asked the White House. As the government now tells it, the four

dissenting Justices may have voted to vacate the stay solely because they

thought that “changed pandemic conditions meant that the eviction

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moratorium was no longer necessary to prevent the spread of COVID-19.”

Opp.15-16. But neither Plaintiffs nor the government ever presented such a

reading of § 264(a) to the Supreme Court. To the contrary, the government

repeatedly urged the Justices to “defer[]” to the CDC as the “ ‘expert best

positioned to determine the need for such preventative measures.’ ” S. Ct.

Opp. 12, 24; see id. at 33-34. Otherwise, the CDC’s determinations of necessity

under § 264(a) would remain subject to perpetual judicial reexamination—a

prospect the government presumably wishes to avoid. And the snippets the

government quotes from Plaintiffs’ Supreme Court application, see Opp.15-16,

explained why the equities—not the merits—favored vacating a stay.

Plaintiffs have never argued that the moratorium only became unlawful when

the public-health situation improved; indeed, they filed this action in late

November 2020.

Confirming the point, the Executive Branch—at least until August 3—

understood the position of the four dissenting Justices to be perfectly clear:

Those Justices (at a minimum) agreed with Justice Kavanaugh “that the CDC

could not grant such an extension without clear and specific congressional

authorization.” Mot.8 (citation omitted); see Mot.7-9. The only thing that has

changed is that the White House now believes that litigating a fourth extension

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of the moratorium will give it “the ability, if we have to appeal, to keep this

going for a month at least” and “by that time” presumably “get a lot of” rental

assistance out the door. Mot.10 (citation omitted).

2. Finally, even if this Court were somehow free to ignore the views

of a majority of the Supreme Court, adhering to the law-of-the-case doctrine

here “would work a manifest injustice” given the Executive Branch’s misuse

of agency action and the judicial process. Christianson, 486 U.S. at 817

(citation omitted); see Mot.23-24. The government does not even

acknowledge, much less respond to, this point.

CONCLUSION

This Court should vacate the stay no later than August 19, 2021.

Dated: August 17, 2021 Respectfully Submitted,

/s/ Brett A. Shumate

Brett A. Shumate
Charlotte H. Taylor
Stephen J. Kenny
J. Benjamin Aguiñaga
JONES DAY
51 Louisiana Ave. NW
Washington, DC 20001
(202) 879-3939
bshumate@jonesday.com
Counsel for Appellees

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CERTIFICATE OF COMPLIANCE

1. This document complies with the word limit of Fed. R. App. P.

27(d)(2)(C) because, excluding the parts of the document exempted by Fed. R.

App. P. 32(f) and D.C. Circuit Rule 32(e)(1), this document contains 2,553

words.

2. This document complies with the typeface and type-style

requirements of Fed. R. App. P. 27(d)(1)(E) and 32(a)(5) and (a)(6) because

this document has been prepared in a proportionally spaced typeface using

Microsoft Word in 14-point Century Expd BT typeface.

/s/ Brett A. Shumate

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CERTIFICATE OF SERVICE

The undersigned certifies that, on this 17th day of August 2021, I filed

the foregoing brief using this Court’s Appellate CM/ECF system, which

effected service on all parties.

/s/ Brett A. Shumate

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