District of Columbia v. Towers

2

emergency. 3 The Mayor explained that “[t]here is reasonable cause to believe that

there is an imminent hazard of or actual occurrence of widespread exposure to an

infectious agent (COVID-19) that poses a significant risk of substantial future harm

to a large number of people in the District of Columbia,” and that “[t]he spread of

COVID-19 is an imminent threat to the health, safety, and welfare of District

residents that requires emergency protective actions be undertaken by the District

Government.”4 The COVID-19 public health emergency is ongoing. As of May 6,

2021 there have been more than 48,000 COVID-19 cases in the District and over

1,100 deaths.5

The declaration of a public health emergency by the Mayor triggered a

progression of legislative responses by the Council of the District of Columbia to

protect residents from losing their housing or even facing the prospect of losing their

housing. On March 17, the Council enacted, as part of the COVID-19 Response

Emergency Amendment Act of 2020, a moratorium on evictions “[d]uring a period

of time for which the Mayor has declared a public health emergency” (“the eviction

moratorium”). 6 Two months later, on May 13, the Council enacted, as part of the

3

Mayor’s Order 2020-45: Declaration of Public Health Emergency –

Coronavirus (COVID-19), Executive Office of the Mayor (March 11, 2020),

https://mayor.dc.gov/release/mayor’s-order-2020-045-declaration-public-health-

emergency-coronavirus-covid-19 https://perma.cc/VBY9-9PME.

4

Mayor’s Order 2020-46: Declaration of Public Health Emergency –

Coronavirus, Executive Office of the Mayor (March 11, 2020),

https://mayor.dc.gov/release/mayor’s-order-2020-046-declaration-public-health-

emergency-coronavirus-covid-19 https://perma.cc/2BLY-DG5Q.

5

COVID-19 Surveillance, Gov’t of the District of Columbia, Muriel Bowser,

Mayor, https://coronavirus.dc.gov/data https://perma.cc/K6LW-49MZ (last visited

May 6, 2021).

6

See D.C. Act 23-247 § 308, 67 D.C. Reg 3093 (Mar. 17, 2020); D.C. Code

§ 42-3505.01(k)(3) (2020 Repl.). Meanwhile Congress enacted a temporary federal

moratorium on eviction filing as part of the Coronavirus Aid, Relief, and Economic

Security Act (“CARES Act”), see 15 U.S.C. § 9058(b). After this moratorium

expired in July 2020, the Centers for Disease Control and Prevention (“CDC”)

ordered a nationwide temporary federal moratorium on evictions, see Temporary

Halt in Residential Evictions to Prevent the Further Spread of COVID-19, 85 Fed.

3

Coronavirus Omnibus Emergency Amendment Act of 2020, the moratorium that is

the subject of this case, disallowing the filing of “a complaint” for a judgment of

possession “[d]uring a period of time for which the Mayor has declared a public

health emergency . . . and for 60 days thereafter” (“the filing moratorium”). 7 By

virtue of making this Act effective as of March 11, 2020, the Council made the

component filing moratorium retroactive to that date. See D.C. Act 23–317 § 29.

On October 14, the Council enacted, as part of the Eviction Notice Moratorium

Emergency Amendment Act of 2020, provisions disallowing housing providers

from issuing notices to vacate to their tenants8 and prohibiting them from

“[e]ngag[ing] in any action that is intended to force tenants to leave their housing or

otherwise give up their rights under the law.” 9 And in November, the Council

enacted legislation requiring housing providers to issue both notices to vacate and

notices of the providers’ intent to file a claim to tenants before filing any type of

claim for a judgment of possession. 10 Although these provisions were enacted

pursuant to emergency or temporary legislation, they have been extended and are in

effect at the time of this order. 11

Reg. 55,292 (Sept. 4, 2020). But the CDC order, which was issued in September

2020 and has been extended several times, see Temporary Halt in Residential

Evictions to Prevent the Further Spread of COVID-19, 86 Fed. Reg. 16,731 (Mar.

31, 2021), does not apply in jurisdictions, like the District, which have provided the

same or greater protections against eviction during the pandemic. See id. at 16,736.

7

See D.C. Act 23–317 § 10, 67 D.C. Reg. 5235 (May 13, 2020); D.C. Code §

16-1501(b) (2012 Repl.).

8

See D.C. Act 23-415 § 2, 67 D.C. Reg. 12243 (Oct. 14, 2020); D.C. Code §

42-3505.01(q)(1)(A). Generally, a property owner must serve a tenant with a notice

to vacate before they may file a complaint seeking a judgment of possession. See §

42-3505.01(a).

9

See D.C. Act 23-415 § 2; D.C. Code 42-3505.01(q)(1)(B).

10

See Fairness in Renting Temporary Amendment Act of 2020, D.C. Act 23-

499 § 2, 67 D.C. Reg. 13959 (Nov. 18, 2020); D.C. Code § 42-3505.01(a), (a-1)(1).

See Coronavirus Support Emergency Amendment Act of 2021, D.C. Act

11

24-30 § 404, 68 D.C. Reg. 003101 (Mar. 17, 2021); Fairness in Renting

4

In the meantime, the District of Columbia courts had to craft their own

response to the pandemic. See Sharps v. United States, No. 20-CO-554, 2021 WL

922468, at *1 (D.C. Mar. 11, 2021) (explaining that “the Superior Court’s normal

operations” were “severely disrupted” by the pandemic). The Superior Court

continued all scheduled hearings in the vast majority of case types, including suits

for possession of residential property in the Civil Division. 12 See Order Further

Reducing D.C. Superior Court Operations (Mar. 18, 2020). Over the next several

months, the court created a new system to conduct remote court proceedings that

were intended to be both accessible to the parties and open to the public. By July,

the Civil Division was in a position to be able to address the hundreds of pending

complaints for possession that had been filed in the Landlord and Tenant Branch

after the declaration of a public health emergency (many of these complaints were

filed before the filing moratorium was enacted, but for reasons that are unexplained

in the record of this case, some number were permitted to be filed after).

The Presiding Judge of the Civil Division directed the trial court to adjudicate

all questions of law relating to the filing moratorium common to any eviction case

filed on or after March 11, 2020, in the Landlord and Tenant Branch. See General

Order Concerning Landlord and Tenant Cases Filed On or After March 11, 2020

(July 28, 2020). The trial court selected five cases filed between March and

September 2020 to consider facial challenges to the legality of the filing moratorium.

The cases involved (1) a foreclosed homeowner, (2) an individual who allegedly

continued to reside at the property after the leaseholder vacated, (3) a tenant who

allegedly failed to pay rent in the month of March, (4) a tenant alleged to be

“maintaining a drug haven as defined by D.C. Code 42-3602” and who allegedly

violated the terms of the lease by engaging in illegal drug activity on or near the

premises, and (5) a tenant alleged to be maintaining a drug haven on the premises.13

Congressional Review Temporary Amendment Act of 2021, D.C. Law 23-255 § 2,

67 D.C. Reg. 13959 (Mar. 16, 2021).

12

These case types comprise suits for possession where the defendant is not a

tenant in rental housing, including cases where the defendant is a squatter or a

holdover in a property that has been foreclosed upon. For ease of reference, we refer

to all defendants in these cases as “tenants.”

13

We do not address in this order whether the filing moratorium under D.C.

Code § 16-1501(b) in fact applies to all of these types of cases. See D.C. Code § 42-

5

The property owners in these cases raised a number of challenges to the filing

moratorium, including:

• Whether the filing moratorium violates D.C. Code § 1-204 (2016 Repl.),

which prohibits the District from passing any law that would violate the

Contracts Clause if it were passed by a state.

• Whether the filing moratorium violates separation of powers principles or

Title 11 of the Home Rule Act, D.C. Code § 1-204.22.

• Whether the filing moratorium constitutes a taking that entitles landlords

to just compensation.

• Whether the repeal and expiration of the emergency acts that contained the

filing moratorium and had an applicability date of March 11, 2020, means

that the filing moratorium is currently applicable only to eviction cases

filed on or after the applicability date of the current temporary act

containing the eviction moratorium, and

• Whether the filing moratorium imposes a “penalty, forfeiture, or liability”

within the meaning of the savings clauses in D.C. and federal codes.

Ultimately, however, the trial court determined that it did not need to reach these

claims.

Instead the trial court focused on the property owners’ claim that the filing

moratorium violated their “fundamental right of access to the courts.” The court

determined that “[t]he United States Constitution protects the right of property

owners to go to court to regain possession of their property in a summary

proceeding,” any infringement on this “time-sensitive” right was subject to

intermediate scrutiny, and the filing moratorium did not survive such review.

Accordingly, the trial court issued a declaratory judgment that the filing moratorium

3602(a) (2020 Repl.). Nor do we express any opinion whether the exceptions to the

eviction moratorium, see D.C. Code § 42-3505.01(k-1), have any application to the

filing moratorium, or whether the separate statutory moratorium on debt collection

activity, see D.C. Act 24-30 § 303; D.C. Code § 28-3814(b)(l)–(2) (2013 Repl.),

precludes property owners from pursuing claims for unpaid rent.

6

was unconstitutional and directed the clerk to “schedule initial hearings in any

pending case filed on or after March 11, 2020, as soon as reasonably possible.”

After the trial court issued its declaratory judgment, the District filed a timely

notice of appeal and then moved for a stay of the trial court’s order pending litigation

of its appeal, first from the trial court and then from this court. We entered an

administrative stay to allow this motion to be litigated, and now that the trial court

has denied the motion for a stay pending appeal, we consider whether a stay should

issue. 14

II. Analysis

In assessing whether to grant an appellant’s motion for a stay pending appeal

we consider four factors: whether the appellant is likely to succeed on the merits of

the appeal; whether the appellant is in danger of suffering irreparable harm if the

stay is denied; whether the opposing party is likely to suffer harm if the stay is

granted or the balance of harms weighs in favor of a stay; and whether the public

interest favors the granting of a stay. See District of Columbia v. Reid, 104 A.3d

859, 865 (D.C. 2014); Barry v. Washington Post Co., 529 A.2d 319, 320–21 (D.C.

1987). These factors “interrelate on a sliding scale” such that a stronger showing of

a likelihood of success may compensate for a weaker showing on the other factors

and vice versa. Salvaterra v. Ramirez, 105 A3d 1003, 1005 (D.C. 2014) (internal

quotation marks omitted). Further, where a case presents “a serious legal question”

and “when there is little risk of harm to the other parties or to the public interest,”

“[a]n order maintaining the status quo may be appropriate.” Walter E. Lynch & Co.,

Inc. v. Fuisz, 862 A.2d 929, 932 (D.C. 2004).

14

After the parties filed their pleadings regarding the motion for a stay

pending appeal, the Council enacted new legislation allowing the eviction process

to proceed under narrow circumstances to ensure the health and safety of people in

residential communities. See Eviction Moratorium Public Safety Exception

Emergency Amendment Act of 2021, D.C. Act 24-67 § 2 (May 3, 2021). Because

the filing moratorium as initially enacted seems not to implicate the right to access

the courts, see infra Part II.1, our analysis of the propriety of a stay does not turn on

this newly enacted legislation limiting the filing moratorium.

7

1. Likelihood of Success

The District argues that it is likely to succeed on appeal because the filing

moratorium does not implicate the right of access to the courts. The District appears

to have a strong argument.

The exact foundation for the right of access to the courts is unsettled. At

different times, the Supreme Court has grounded this right in the Privileges and

Immunities Clause of Article IV, the Petition Clause of the First Amendment, the

Equal Protection Clause of the Fourteenth Amendment, and the Due Process Clauses

of the Fifth and Fourteenth Amendments. See Christopher v. Harbury, 536 U.S.

403, 415 n.12 (2002). But at least one thing is clear: the right of access is “ancillary

to the underlying claim” sought to be litigated, “without which a plaintiff cannot

have suffered injury by being shut out of court.” Id. at 415; see also id. at 414–15

(explaining “the very point of recognizing any access claim is to provide some

effective vindication for a separate and distinct right to seek judicial relief for some

wrong”). In other words, in order to raise a right to access claim, an individual must

have a separate legal claim to litigate. Thus, for example, where a class of putative

plaintiffs could not afford to pay court fees to pursue an otherwise viable cause of

action (divorce), the Supreme Court held their right of access to the courts was

violated. Boddie v. Connecticut, 401 U.S. 371, 374 (1971). Similarly, the Supreme

Court held that the denial of an adequate law library violated prisoners right of access

to the courts because it deprived them of “[t]he tools . . . [they] need[ed] in order to

attack their sentences, directly or collaterally, and in order to challenge the

conditions of their confinement.” Lewis v. Casey, 518 U.S. 343, 355 (1996).

Here the trial court concluded that appellees’ right of access to the courts was

violated because, by virtue of an amendment to D.C. Code § 16-1501, they were

temporarily barred from filing complaints for a judgment of possession thereunder.

But claims for a judgment of possession and eviction in the District are defined

exclusively and precisely by statute.15 Having been defined by the legislature, these

15

See Mendes v. Johnson, 389 A.2d 781, 787 (D.C. 1978) (en banc) (“[T]he

landlord’s common law right of self-help has been abrogated, and the legislatively

created remedies for reacquiring possession are exclusive. A tenant has a right not

8

claims can likewise be constricted. 16 Claims for possession and eviction are already

subject to a litany of procedural limitations designed to give tenants a full and

meaningful opportunity to defend themselves and maintain their housing. 17 The

additional limitation of a filing moratorium for these types of claims during a

pandemic does not appear to implicate the right of access to the courts any more

than, for example, requiring the filing of a notice to vacate before allowing the filing

of a complaint for a judgment of possession. Although both provisions inject delay

into the process, they are simply part of the procedural fabric of our eviction

statute.18 See Sosna v. Iowa, 419 U.S. 393, 410 (1975) (upholding a one-year

to have his or her possession interfered with except by lawful process, and violation

of that right gives rise to a cause of action in tort.”).

16

Cf. Pennell v. City of San Jose, 485 U.S. 1, 12 n.6 (1988) (“States have

broad power to regulate housing conditions in general and the landlord-tenant

relationship in particular . . . .” (internal quotation marks omitted)); Hornstein v.

Barry, 560 A.2d 530, 533–34 (D.C. 1989) (en banc) (“Laws adjusting the burdens

and benefits of economic life come to the courts with a presumption of

constitutionality . . . .”).

17

Of course, a property owner’s hands are not completely tied by the statutory

scheme limiting their ability to go to court to recoup their rent or reclaim their

property from a tenant. They may always attempt to negotiate with the tenant

directly. Cf. United States v. Kras, 409 U.S. 434, 445 (1973) (explaining that

“bankruptcy is not the only method available to a debtor for the adjustment of his

legal relationship with his creditors” because “[h]owever unrealistic the remedy may

be in a particular situation, a debtor, in theory, and often in actuality, may adjust his

debts by negotiated agreement with his creditors”).

18

It is immaterial that some provisions of our eviction laws that delay relief

have definite time periods measured in an exact number of days. See, e.g., D.C.

Code § 42-3505.01(b) (giving tenants 30 days to cure a violation of an obligation of

tenancy). Not all procedural delays are so precisely quantifiable. See, e.g., D.C.

Code § 42-3505.01(k)(1), (2) (disallowing evictions, subject to some exceptions, on

days when the temperature is below freezing or when it is precipitating). In any

event, the filing moratorium also has a definite end: it will be lifted “when the

[public health] emergency ends, or is overcome. Even if there may be uncertainty

9

residency requirement for divorce on the ground that it merely delayed the cause of

action and distinguishing Boddie where “[t]he operation of the filing fee . . . served

to exclude forever a certain segment of the population from obtaining a divorce in

the courts of Connecticut”).

We question the trial court’s determination that the landlords’ right to access

claim was ancillary to a claim under “[t]he United States Constitution [that] protects

the right of property owners to go to court to regain possession of their property in a

summary proceeding,” a right the court described as “time sensitive.” To be sure,

property owners have rights that are protected by various constitutional provisions,

but we are unaware that there is a constitutional right to evictions on a particular

timetable, notwithstanding prior descriptions in our cases of landlord-tenant

proceedings as “summary in nature.” Mahdi v. Poretsky Management, 433 A.2d

1085, 1088 (D.C. 1981); but cf. Hornstein, 560 A.2d at 532 & n.3 (describing

“comprehensive scheme of regulation [including eviction controls] designed to

protect the rights of tenants, particularly poor and elderly tenants who, in the

Council’s reasonable view, merit and need such protection” (footnote omitted)).

In assessing the likelihood of the District’s success on appeal, we have also

surveyed the country to see how right of access challenges to pandemic-related filing

moratoriums in other jurisdictions have fared. At least ten other states and a number

of other localities have enacted filing moratoriums for eviction suits during the

pandemic. 19 Yet the trial court’s decision striking down similar legislation on the

as to when that will happen, the statutory premise is that it will happen in the

foreseeable future . . . .” Sharps, 2021 WL 922468, at *10.

19

In addition to the District, California, Connecticut, Hawaii, Illinois,

Minnesota, Nevada, New York, Oregon, Vermont, and Washington currently have

filing moratoriums in place. See Covid-19 Housing Policy Scorecard, Eviction Lab,

Princeton University, https://evictionlab.org/covid-policy-scorecard/

https://perma.cc/8AGD-KXUF (last visited May 6, 2021). Massachusetts had a

filing moratorium that expired on October 17, 2020. Expiration of Moratorium on

Evictions and Foreclosures, https://www.mass.gov/info-details/expiration-of-

moratorium-on-evictions-and-foreclosures https://perma.cc/795C-QF27 (last visited

May 6, 2021). Several localities also imposed notice and filing moratoriums at the

beginning of the pandemic that have since been lifted. See Preliminary Analysis:

10

ground that it violates the right of access to the courts stands alone. By contrast, at

least two other federal trial courts have determined that such a constitutional

challenge is meritless or unlikely to succeed. See, e.g., Baptiste v. Kennealy, 490 F.

Supp. 3d 353, 393–94 (D. Mass. 2020); Elmsford Apartment Assocs., LLC v. Cuomo,

469 F. Supp. 3d 148, 174 (S.D.N.Y. 2020).

This is not to say that the filing moratorium could not be challenged on other

grounds. But see Baptiste, 490 F. Supp. 3d at 369–71 (finding landlords not

reasonably likely to prevail on claims that filing moratorium violates their rights

under the Contracts Clause, Takings Clause, and First Amendment); Elmsford

Apartment Assocs., LLC, 469 F. Supp. 3d at 155–56 (rejecting landlords’ claims that

filing moratorium violates their rights under the Contracts Clause, Takings Clause,

and Due Process Clause). But because the trial court limited its analysis to a

determination that the filing moratorium violated the right of access to the courts,

our focus is on whether the District’s challenge to that analysis has a likelihood of

success. It appears that it does.20

Eviction Filings During and After Local Eviction Moratoria, Eviction Lab,

Princeton University (Nov. 15, 2020), https://evictionlab.org/moratoria-and-filings/

https://perma.cc/M47M-7253.

20

Even assuming that the right of access is implicated by the filing

moratorium, it is not at all clear that legislation compromising the right of access to

the courts to regain possession of one’s property from a tenant is subject to

intermediate scrutiny. See generally Ronald D. Rotunda & John E. Nowak, 3

Treatise on Const. L. § 17.10 (May 2020) (“Where access to the judicial process is

not essential to the exercise of fundamental constitutional rights the state will be free

to allocate access to the judicial machinery on any system or classification which is

not totally arbitrary.”). In any event, there is a strong argument that the filing

moratorium survives intermediate scrutiny because, as discussed further below, it is

substantially related to one or more important governmental objectives, see Brown

v. United States, 979 A.2d 630, 641 (D.C. 2009), namely, ensuring people can retain

their housing, shelter in place, and avoid spreading the COVID-19 virus. Cf.

Baptiste, 490 F. Supp. 3d at 394 (“Preventing the spread of an epidemic is a

legitimate state interest.”).

11

2. Danger of Irreparable Harm to Tenants

The District has adequately demonstrated that, without a stay, there is risk of

irreparable harm to the defendants from the property owners’ suits for possession

should the property owners be permitted to file them. Although the eviction

moratorium has not been challenged, the District argues that there is still the danger

that tenants will self-evict—that is, out of fear, misunderstanding, or a lack of

resources to fight eviction, they will move out of their homes simply as a result of

being made a defendant to a suit for possession. “The upheaval of a tenant from his

home, even if he can find alternative housing, creates a cognizable irreparable

injury.” Akassy v. William Penn Apartments Ltd. P’ship, 891 A.2d 291, 309 (D.C.

2006). It is not fatal to its argument that the District cannot supply hard numbers to

show that the absence of a stay would cause self-eviction on a mass scale, or that

some number of tenants have been successfully advised of their rights. The District

need only show that tenants are in some “danger of suffering irreparable harm” that,

when considered in conjunction with the other stay factors, justifies temporary

equitable relief. Reid, 104 A.3d at 876–77 (internal quotation marks omitted)

(rejecting the argument that families experiencing homelessness had failed to present

sufficient evidence of irreparable harm as a result of being housed in congregate

shelters); cf. Akassy, 891 A.2d at 310 (explaining that “if irreparable harm is clearly

shown, the movant may prevail by demonstrating that he or she has a ‘substantial

case on the merits’”). Given that the vast majority of tenants who appear in Landlord

Tenant Court “cannot afford counsel and are unable to obtain free representation

from the District’s oversubscribed legal services providers,” Wylie v. Glenncrest,

143 A.3d 73, 84 (D.C. 2016),21 we conclude that there is a real danger of self-

21

With the benefit of money appropriated by the Council for eviction defense,

it appeared the representation numbers were slightly improving just before the

pandemic hit: 75% of tenants in Landlord Tenant Court did not have a lawyer, down

from 88% in 2017. See Sarah Hainbach, Who Deserves a Lawyer? The Case for a

Right to Counsel in Housing Proceedings, Blog, Geo. J. on Poverty L. & Pol’y (Jan.

28, 2020), https://www.law.georgetown.edu/poverty-journal/blog/who-deserves-a-

lawyer-the-case-for-a-right-to-counsel-in-housing-proceedings/

https://perma.cc/BK8H-3TJ8; Delivering Justice: Addressing Civil Legal Needs in

the District of Columbia, D.C. Access to Justice Comm’n 4 (2019).

12

eviction as a result of allowing property owners to file and litigate suits for

possession in Superior Court.22

Beyond the risk of self-eviction, there is also the concern that tenants will be

unable to litigate their cases effectively during the public health emergency for any

number of reasons: for example, a tenant may be sick, or caring for someone who

is sick, or caring for children who are out of school; or a tenant may lack access to a

home computer or a reliable internet connection needed to access forms or other

case-related information online, conduct research, or attend a remote hearing; 23 or a

tenant may be unable to amass their proof or seek out counsel to contest the

allegations being made against them or establish defenses.

And, perhaps most importantly, for those tenants who have failed to pay their

rent, there is the loss of the extended opportunity to cure. The federal and district

governments have made and continue to make efforts to provide various forms of

assistance to people in need during this public health emergency to help them survive

until the pandemic abates and the economy rebounds. In addition to other rental and

22

As amici in support of the District’s motion for a stay pending appeal argue,

even the individuals who withstand the pressure to self-evict when faced with a

complaint for possession may suffer emotional harm in the form of heightened

anxiety and depression. The trial court dismissed this harm argument on the ground

that it had not been given “substantial evidence . . . that the filing of a lawsuit

significantly increases the emotional distress that tenants or other occupants at risk

of eviction already experience.” But it is self-evident that the initiation of court

proceedings to force an individual or a family out of their home during a pandemic

would cause significant emotional harm.

23

Recognizing the technological difficulties individuals may face in accessing

remote hearings, the D.C. Courts have set up five sites in all four quadrants of the

District where individuals can reserve a computer station to attend a remote hearing.

See D.C. Superior Court Opens 5 Locations for Wifi, Computer Access, Child

Support Servs. Div., Off. of the Attorney General for the District of Columbia (Sept.

18, 2020), https://cssd.dc.gov/release/dc-superior-court-opens-5-locations-wifi-

computer-access https://perma.cc/K4H3-5PA4.

13

mortgage assistance programs, 24 in early April, the Mayor announced a $350 million

assistance program, Stronger Together by Assisting You (STAY DC), to fund grants

for D.C. residents for up to eighteen months to pay missed rent and utility bills dating

back to April 1, 2020, as well as upcoming rent and utility expenses. See Stay DC,

Gov’t of the District of Columbia, Muriel Bowser, Mayor, https://stay.dc.gov

https://perma.cc/UUM5-8FFV (last visited May 6, 2021). 25 Landlords may initiate

applications for their qualifying tenants. Id. Meanwhile the economy appears to be

recovering and employers are adding employees. 26 With additional time, once

assistance is received or a job is regained, tenants may be able to avoid losing their

homes. A central aim of a filing moratorium, after all, is not simply to stave off the

inevitable; it is to give tenants time to stabilize and avoid displacement. 27

3. Balancing Harm to Property Owners

Balancing the harm to property owners if a stay pending appeal is granted also

favors issuance of a stay. Because the eviction moratorium has not been challenged,

a stay of the trial court’s order invalidating the filing moratorium will have no effect

on the owners’ ability to regain immediate possession of the subject property.

24

See Housing Resources, Gov’t of the District of Columbia, Muriel Bowser,

Mayor, https://coronavirus.dc.gov/rent https://perma.cc/B3MW-JPXW (last visited

May 6, 2021).

25

See Kyle Swenson, D.C. Announces $350 Million Program to Help

Residents Pay Rent and Utility Bills, Wash. Post (Apr. 12, 2021, 4:07 p.m.),

https://www.washingtonpost.com/dc-md-va/2021/04/12/dc-rent-relief/

https://perma.cc/XE7V-AE4A.

26

See DC Unemployment Rate at 7.8 Percent in March, D.C. Dep’t of Emp’t

Servs. (Apr. 19, 2021), https://does.dc.gov/release/dc-unemployment-rate-78-

percent-march-0 https://perma.cc/DXC4-AF2Q.

27

The trial court’s observation that many individuals protected by the filing

moratorium were facing financial hardship before the pandemic simply underscores

the need to afford these individuals time to take advantage of the new forms of

assistance that are now available.

14

The property owners appear to take the position that they would nevertheless

be harmed by a stay because they are in fact entitled to judgments of possession and

a stay keeping the filing moratorium in place would impede them from establishing

that now and then quickly obtaining writs of restitution when the eviction

moratorium is lifted. This delay is not a cognizable harm, however, because it is

unclear that when the eviction moratorium lifts these landlords will be entitled to

evictions. Not only is it possible that some of their claims are currently unfounded,

events may transpire between now and then that defeat or moot out certain claims.

Again, the whole point of the filing moratorium is to give tenants additional time to

stabilize so that eviction is no longer warranted when the eviction moratorium is

lifted—not to create a new public health emergency in the form of a tidal wave of

evictions at a later point in time.

The landlords also argue that they will be harmed by a stay because, if they

cannot initiate a suit for possession, they cannot ask the court to direct a tenant, via

a protective order or undertaking order, to make payments into the court registry

during the pendency of that litigation. See Penny v. Penny, 565 A.2d 587, 591 (D.C.

1989). Such orders are generally not issued in cases where a property owner seeks

a judgment of possession for reasons besides nonpayment of rent, as the trial court

acknowledged, because of the unfair burden it places on tenants’ ability to defend

their right to remain in their homes. See Super. Ct. L&T R. 12-I (a)(1)(C) (imposing

special limits on the issuance of protective orders in nonpayment of rent cases); see

also Bell v. Tsintolas Realty Co., 430 F.2d 474, 479–80 (D.C. Cir. 1970) (explaining

that requiring tenants to provide security to landlords pending litigation is contrary

to “the ordinary processes of civil litigation, in which, as a general rule, the plaintiff

has no advance assurance of the solvency of the defendant”). But even for the

relevant subset of property owners seeking a judgment of possession entitled to a

protective order, an order to pay money into the court registry does not translate into

timely payment of the full monthly dollar value property owners assert is owed.

Tenants cannot pay into the court registry what they do not have, see Graham

v. Lanier Assocs., 19 A.3d 361, 367 (D.C. 2011) (explaining that the court must

consider “a tenant’s financial straits” in setting a protective order amount), so a

property owner may suffer no loss from the inability to obtain a protective order.

Assuming the tenant has some ability to pay, the amount to be paid is left to the trial

court’s discretion and turns on the consideration of a number of factors, including

15

the existence of any housing code violations reducing the value of the property. See

Bell, 430 F.2d at 484–85; Penny, 565 A.2d at 591. Further, a “protective order does

not dispose finally of the parties’ right to the money paid under it,” Akassy, 891 A.2d

at 308, and there are strict limits on the disbursement of funds paid into the registry

while the case is still pending:

Where, but only where, the court can say with complete

certainty that the landlord will become entitled to a

definite part of the in-court fund in any event, and the

landlord demonstrates convincingly so dire a need for that

part as to persuade the court to exercise its equitable

powers to afford him some relief, the court may, to just

that extent, respond favorably to the landlord’s request for

disbursement from the deposited fund pendente lite. This

rule contemplates, of course, that the competing claims of

the parties will first be subjected to careful examination at

a hearing after due notice, and that nonfrivolous claims of

tenants to ultimate nonliability for any or all of the

deposited monies will be scrupulously honored. And it

goes without saying that the court’s authority to order a

turnover from the fund must be cautiously and sparingly

utilized.

Cooks v. Fowler, 459 F.2d 1269, 1277 (D.C. Cir. 1971); accord Stets v.

Featherstone, 754 A.2d 292, 296 (D.C. 2000) (“[W]here no genuine dispute exists

regarding the landlord’s entitlement to a portion of the rent due under the lease,

equitable considerations may justify the L & T court in ordering partial release of

the uncontested amounts from the registry . . . pendente lite . . . .”).

While some subset of property owners might experience some harm by losing

the opportunity to obtain a protective order or undertaking order requiring the tenant

to pay likely some lesser monthly amount into the court registry, and then to seek

partial disbursement of that amount while the case is pending, we cannot say the

prospect of that harm shifts the balance of equities against the issuance of a stay

pending appeal. Even as to these property owners, this harm does not appear to be

“irreparable.” “Mere injuries, however substantial, in terms of money . . . necessarily

16

expended in the absence of a stay, are not enough. The possibility that adequate

compensatory or other corrective relief will be available at a later date, in the

ordinary course of litigation, weighs heavily against a claim o[f] irreparable harm.”

Zirkle v. District of Columbia, 830 A.2d 1250, 1257 (D.C. 2003).

4. Public Interest

Lastly we conclude that the public interest favors the issuance of a stay

pending appeal.

The filing moratorium is one component of the Council’s comprehensive

response to the COVID-19 public health emergency and its financial fallout. While

the courts have an important role to play in ensuring that the District does not wield

its police powers in an unconstitutional or illegal manner, we are not legislators

elected to make difficult policy decisions with potentially life or death consequences.

See S. Bay United Pentecostal Church v. Newsom, 140 S. Ct. 1613, 1613–14 (2020)

(Roberts, C.J., concurring) (“When [elected] officials undertake to act in areas

fraught with medical and scientific uncertainties, their latitude must be especially

broad . . . [and] should not be subject to second-guessing by an unelected federal

judiciary, which lacks the background, competence, and expertise to assess public

health and is not accountable to the people.” (internal quotation marks, citation, and

brackets omitted)). Proper understanding of our role, coupled with the fact that we

are unaware of any other court anywhere in the country which has ruled that a

moratorium on filing suit for eviction during a public health emergency violates the

right of access to the courts, strongly weighs in favor of caution and a stay.

The public’s interest in the fair administration of justice also weighs in favor

of a stay. Pre-pandemic, almost all Superior Court proceedings were held in person

and the vast majority were open to the public. It took months to recreate some

measure of that accessibility and transparency remotely. The Superior Court is only

just now recommencing jury trials in a limited number of criminal cases.28 But the

28

See DC Courts’ Pandemic Operations Information, District of Columbia

Courts, https://www.dccourts.gov/coronavirus https://perma.cc/3BRJ-ME3V (last

visited May 6, 2021).

17

Civil Division continues to operate entirely remotely at a much-reduced capacity. 29

An estimated 500 eviction cases affected by the filing moratorium are currently

pending; such an influx could pose a particular challenge for the court and litigants,

again because the vast majority of tenants in these cases, by virtue of being poor and

unrepresented, are more likely to have difficulty navigating a system where hearings

are conducted remotely. The Superior Court, having already demonstrated its

resilience, would do its best to manage. But there is a strong argument that it would

be better for the public if the steps taken by elected officials to keep people in their

homes and out of court were given time to work.

III. Conclusion

For the reasons discussed above, we conclude that a stay pending appeal is

appropriate in this case.

Accordingly, it is

ORDERED that appellant’s motion to supplement the motion for a stay

pending appeal is granted. It is

FURTHER ORDERED that the motion filed by Bread for the City, the D.C.

Bar Pro Bono Center, the Legal Aid Society of the District of Columbia, Legal

Counsel for the Elderly, Neighborhood Legal Services Program, and Rising for

Justice to appear as amici curiae in support of appellant’s motion for a stay pending

appeal is granted and the Clerk shall file their lodged brief. It is

FURTHER ORDERED that appellee Borger Management’s motions for leave

are granted and the Clerk shall file its lodged oppositions and responsive brief. It is

FURTHER ORDERED that the administrative stay entered by this court is

hereby vacated and appellant’s emergency motion to stay the trial court’s December

16, 2020, order pending appeal is granted. It is

29

See id.

18

FURTHER ORDERED, sua sponte, that the appeals shall be expedited and

placed for consideration on the September 2021 regular calendar. It is

FURTHER ORDERED that appellant shall order the necessary transcripts on

an expedited basis and within five days from the date of this order file a copy of the

statement regarding transcripts with the court. It is

FURTHER ORDERED that appellant and amici curiae supporting appellant

shall file their briefs and joint appendix no later than June 25, 2021; the briefs of

appellees shall be filed no later than July 26, 2021; and appellant shall file its reply

brief no later than August 10, 2021. It is

FURTHER ORDERED that the parties shall, no later June 30, 2021, notify

the court of their September 2021 availability by emailing that information to

CalendarClerk@dcappeals.gov. It is

FURTHER ORDERED that any attorney who has entered an appearance in

these matters is reminded of this court’s requirement to register for the court’s efiling

system. See D.C. App. R. 25(a)(2)(B)(ii).

PER CURIAM

FISHER, Senior Judge, concurring in the decision to grant the motions at issue:

I do not join the lengthy opinion of the court. It is not our task to decide the merits

of these appeals and the opinion says too much on that topic. In addition, considering

that the moratorium on evictions is not affected by the trial court’s order, the opinion

gives too much credence to appellant’s claim of irreparable harm and fails to

recognize that the landlords suffer harm from the granting of a stay. But this is not

an ordinary appeal, and I ultimately agree that a stay is warranted because the trial

court has declared an act of the Council to be unconstitutional.

19

Copies mailed to:

Honorable Anthony Epstein

QMU – Civil Division

Abel Hernandez-Cruz

Fulgencio Cruz

1515 Ogden Street, NW, #608

Washington, D.C. 20010

Unknown Occupants

2832 27th Street, NE

Washington, D.C. 20018

Kendra Bryant

1607 D Street, NE

Washington, DC 20002

Andre Hopkins

912 Barnaby St. SE #103

Washington, DC 20032

Donna Butler

1840 Minnesota Avenue SE

#15

Washington, DC 20020

James Shelton

256 15th Street, SE

Washington, DC 20003

John O’Connor, Jr., Esquire

1330 Connecticut Avenue, NW

Washington, DC, 20036

Copies e-served to:

20

Loren L. AliKhan, Esquire

Solicitor General DC

Stephen O. Hessler, Esquire

Jennifer Friend-Kelly, Esquire

Gary D. Wright, Esquire

Morris R. Battino, Esquire

Aaron Sokolow, Esquire

Edward Cordone, Esquire

Vincent Policy, Esquire

Richard Luchs, Esquire

Cml