MEMPHIS, TN – March 30, 2021 – In a unanimous and published March 29, 2021 decision by Circuit Court Judges Alan E. Norris, Amul R. Thapar, and John K. Bush, the United States Court of Appeals for the Sixth Circuit (“Sixth Circuit”) ruled in favor of the Plaintiffs, denying the Government’s Emergency Motion for Stay.  The Government’s effort to stay U.S. District Court Judge Mark Norris’ March 17, 2021 ruling striking down and declaring unenforceable the CDC’s eviction moratorium (“Halt Order”) would have allowed for the continued application and enforcement of the Halt Order during the pendency of the appeal process.

“We are very grateful to the Sixth Circuit for its clear and decisive ruling preventing the Government’s efforts to reinstate serious and unlawful infringements on constitutional standards and fundamentally protected rights,” noted Josh Kahane of Glankler Brown PLLC who serves as lead counsel for the Tiger Lily Plaintiffs.  “Once again, the Judiciary’s correct and just application of the law has effectively defended and preserved important rights of the citizenry.”  

The case, Tiger Lily, LLC et al. vs. United States Department of Housing and Urban Development et al., brought by Glankler Brown lawyers, Kahane and Aubrey Greer, was the first case of its kind filed anywhere in the United States on behalf of such a broad and diverse coalition of business organizations and individuals owning and managing apartment complexes, duplexes, townhomes, and single-family residences. Plaintiffs challenged the Government’s attempt to regulate the residential property market and to prohibit all evictions for the non-payment of rent through an obscure statute dealing with quarantine-related measures aimed at stopping the interstate spread of infectious diseases.  The Tiger Lily Plaintiffs argued, among other things, that the Government action exceeded its authority, was arbitrary and capricious, and infringed upon constitutionally protected liberties.

Following issuance of U.S. District Court Judge Mark Norris’s March 17, 2021 Order finding and declaring the Halt Order to be ultra vires and unenforceable, the Government immediately took appeal to the Sixth Circuit and filed —in both the District Court and Sixth Circuit Court of Appeals— contemporaneous Emergency Motions for Stay Pending Appeal and for Immediate Administrative Stay.

Though the District Court Motion for Stay was still pending and unresolved, the Sixth Circuit took up the Government’s Motion for Stay made to the Court of Appeals and ordered counsel for the Tiger Lily Plaintiffs to undertake comprehensive expedited briefing in opposition.  Within 48-hours, counsel for the Tiger Lily Plaintiffs filed two separate opposition responses: one on procedural grounds based upon Fed. R. App. P. 8, and one on substantive grounds addressing the reasons why the Government’s Court of Appeals Motion for Stay failed as a matter of law and should be denied.  

On March 30, 2021, the Sixth Circuit panel, made up of Circuit Court Judges Norris, Thapar and Bush, issued and published their Order denying the Government’s Emergency Motion for Stay finding that the Halt Order “falls outside the scope of the statute.”

The Sixth Circuit Court adopted the Tiger Lily Plaintiffs’ argument as grounds to deny the Government’s Emergency Motion for Stay, emphasizing that the Government’s interpretation of the statute would raise serious constitutional problems, because it would violate constraints on Congress’ ability to delegate power to the executive branch.  “In the absence of a clear mandate in the Act, it is unreasonable to assume that Congress intended to give the Secretary the unprecedented power of that kind. We will not make such an unreasonable assumption.

The Sixth Circuit also concluded that the Government’s interpretation of the law violates the long-standing rule that courts should not interpret federal law to usurp traditional areas of state government authority, unless Congress has clearly indicated its intent to do so.  “There is no ‘unmistakably clear’ language in the Public Health Service Act indicating Congress’s intent to invade the traditionally State–operated arena of landlord–tenant relationship.

Perhaps most importantly, the Sixth Circuit concluded that the Government is unlikely to prevail on the merits of its underlying appeal, possibly previewing the Sixth Circuit’s conclusion when it does decide the underlying appeal on the merits.

“The importance of this Order should not be lost; the appellate court is sending what appears to be a strong signal that the Government’s regulation of the residential housing market under the guise of a pandemic control measure is —as we argued from the start— totally unlawful.” added Aubrey B. Greer, co-counsel for the Tiger Lily Plaintiffs. 

The Tiger Lily case is the only CDC eviction moratorium case in the United States with an appellate decision and, therefore, Tiger Lily serves as the leading case nationally on the constitutionality and lawfulness of the CDC’s eviction moratorium.  

Tiger Lily’s Procedural and Substantive briefs in opposition to the Government’s Emergency Motion for Stay and full text of the Sixth Circuit’s Order may be accessed here.

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