Petition for Writ of Certiorari — Alexander Gallo, Petitioner v. District of Columbia
Supreme Court briefSep 5, 2025
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No. _______
In The
Supreme Court of the United States
Alexander Gallo
Petitioner
v.
District of Columbia
Respondent
On Petition for a Writ of Certiorari to the
United States Court of Appeals for the District
of Columbia Circuit
PETITION FOR A WRIT OF CERTIORARI
SAEID B. AMINI
THE LAW OFFICES OF SAEID B. AMINI
730 24th Street, NW
Suite One
Washington, DC 20037
(202) 306-9444
sbajd98@yahoo.com
Counsel of Record for Petitioner
QUESTIONS PRESENTED
1. Whether an eviction moratorium is a physical
taking or appropriation of property?
2. Whether Petitioner’s challenge to the District’s
eviction moratorium states a claim under Lucas
or Penn Central?
3. Whether Petitioner’s challenge to the District’s
eviction moratorium states a claim for
impairment under the Contracts Clause?
4. Whether the Contracts Clause is actionable under
USC1983?
ii
PARTIES TO THE PROCEEDINGS BELOW
Petitioner Alexander Gallo was the Plaintiff
and Appellant below, appearing pro se in both the
District Court and Court of Appeals. The District of
Columbia was the Defendant and Appellee below.
Before the DC Circuit, the CATO Institute
appeared as amicus curiae in support of Petitioner.
Latham & Watkins LLP appeared as court-appointed
amicus curiae.
RELATED PROCEEDINGS
The following proceedings are directly related
to this petition:
Alexander Gallo v. District of Columbia, 610 F. Supp.
3d 73 (D.D.C. 2022)
Alexander Gallo v. District of Columbia, 659 F. Supp.
3d 21 (D.D.C. 2023)
Alexander Gallo v. District of Columbia, 2023 WL
7552703
Alexander Gallo v. District of Columbia, No. 23-7158
(D.C. Cir May 20, 2025)
iii
TABLE OF CONTENTS
QUESTIONS PRESENTED .........................................ii
PARTIES TO THE PROCEEDINGS BELOW .......... iii
RELATED PROCEEDINGS....................................... iii
TABLE OF APPENDICES .......................................... iv
TABLE OF AUTHORITIES ......................................... v
OPINIONS BELOW ..................................................... 1
JURISDICTION............................................................ 1
RELEVANT CONSTITUTIONAL PROVISIONS ....... 1
INTRODUCTION ......................................................... 2
STATEMENT OF THE CASE ...................................... 2
REASONS FOR GRANTING THE PETITION ........... 7
I.
Appellate Splits on all Questions Presented
are now Entrenched .................................................. 7
II.
The Judgment Below is Wrong ..................... 12
III.
This Case is a Clean Vehicle ......................... 16
TABLE OF APPENDICES
Appendix A: Denial of Panel Rehearing .................... 3a
Appendix B: Denial of En Banc Review ..................... 4a
Appendix C: DC Circuit Judgment ............................ 5a
Appendix D: Second Opinion of District Court ........ 22a
Appendix E: Order Granting Reconsideration ........ 39a
Appendix F: First Opinion of District Court............ 50a
Appendix G: Relevant Statutory Provisions ............ 78a
Appendix H: DC Superior Court Ruling .................. 79a
iv
TABLE OF AUTHORITIES
Cases
Action Assn. v. Santa Monica Rent Control Bd., 94
Cal.App.4th 587 (Cal. Ct. App. 2001) ..................... 8
Alarm Detection Sys., Inc. v. Village of Schaumburg,
930 F.3d 812 (7th Cir. 2019) ................................. 12
Attorney General v. Old Colony Railroad, 160 Mass.
62 (1893)................................................................. 10
Benenson v. United States, 548 F.2d 939 (Fed. Cir.
1977) ......................................................................... 9
Bigelow v. West Wisconsin Railway Co., 27 Wis. 478
(1870) ....................................................................... 9
Black v. Cutter Laboratories, 351 U.S. 292 (1956) .. 17
Block v. Hirsh, 256 U.S. 135, 149 (1921) ................. 13
Brewster v. Rogers Co., 169 N. Y. 73 (N.Y. 1901) .... 10
City of Seattle v. McCoy, 4 P.3d 159 (Wash.Ct.App.
2000) ....................................................................... 10
City Railway Co. v. Citizens' Railroad Co., 166 U.S.
557, 564 (1897)....................................................... 14
Conley v. Gibson, 355 U.S. 41 (1955) ....................... 16
Crosby v. City of Gastonia, 635 F.3d 634 (4th Cir.
2011) ....................................................................... 12
Darby Development v. United States, 112 F.4th 1017
(Fed. Cir. 2024) ........................................................ 7
Ex Parte Virginia, 100 U.S. 339 (1879) ...................... 6
Finn v. 415 Fifth Ave. Co, 153 F.2d 501 (2d Cir. 1946)
.................................................................................. 7
Hasegawa v. Maui Pineapple Co., 52 Haw. 327 (1970)
.................................................................................. 8
Hawaii Housing Authority v. Midkiff, 467 U.S. 229,
242 (1984)............................................................... 13
v
Heights Apartments, LLC v. Walz, 30 F.4th 720 (8th
Cir. 2022) ......................................................... 11, 12
Hinsdale v. White, 6 Hill & Den. 507 (N.Y. 1844) ... 14
Home Building & Loan Association v. Blaisdell, 290
U.S. 398, 441 (1934) .............................................. 14
Kaminski v. Coulter, 865 F.3d 339 (6th Cir. 2017) .. 12
Keshbro v. City of Miami, 801 So. 2d 864 (Fla. 2001)
................................................................................ 10
Knick v. Township of Scott, 139 S. Ct. 2162 (2019) ... 6
Levy Leasing Co., Inc. v. Siegel, 258 U.S. 242 (1922)
................................................................................ 13
Louisville Joint Stock Land Bank v. Radford, 295
U.S. 555 (1935) ...................................................... 13
Marcus Brown Holding Co. v. Feldman, 256 U.S.
170, 183 (1921)....................................................... 12
Matter of Keystone Assoc. v. Moerdler, 224 N.E.2d
700 (N.Y. 1966) ........................................................ 9
McKeon v. New York, N. H. H.R. Co., 53 A. 656
(Conn. 1902) ............................................................. 9
Melendez v. New York City, 16 F.4th 992 (2d Cir.
2021) ....................................................................... 11
Niagara Falls Bridge Commission v. United States,
111 Ct. Cl. 338 (1948) ............................................ 11
Northwest Landowners Association v. State, 2022 ND
150 (N.D. 2022) ........................................................ 9
People ex rel. Durham Realty Corp. v. La Fetra, 230
N.Y. 429 (N.Y. 1921) .............................................. 13
Porter v. Shibe, 158 F.2d 68 (10th Cir. 1946) ............ 7
Rivera v. R. Cobian Chinea Co., 181 F.2d 974 (1st
Cir. 1950) ................................................................. 7
Simmons v. Abruzzo, 49 F.3d 83 (2nd Cir. 1995) ...... 16
State v. Beackmo, 8 Blackf. 246 (Ind. 1846) ............ 11
State v. Griggs, 358 P.2d 174 (Ariz. 1960) ................. 9
vi
State v. Ravine Road Sewer Commissioners, 39
N.J.L. 665, 10 Vroom, 665 (N.J. 1877) .................... 9
Stern v. Equitable Trust Co., 144 N.E. 578 (N.Y.
1924) ....................................................................... 14
Sturges v. Crowninshield, 17 U.S. 122 (1819) ......... 15
Suitum v. Tahoe Regional Planning Agency, 520 U.S.
725 (1997)............................................................... 16
Twentieth Century Associates v. Waldman, 294 N.Y.
571 (N.Y. 1945) ...................................................... 15
W. B. Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935)
................................................................................ 15
Watters v. Bd. of Sch. Dirs. of City of Scranton, 975
F.3d 406 (3d Cir. 2020) .......................................... 12
Webster v. Rose, 53 Tenn. 93 (1871) ......................... 15
Welsh v. Cross, 146 Cal. 621 (Cal. 1905) .................. 15
Western Un. Tel. Co. v. Hansen Rowland Corp., 166
F.2d 258 (9th Cir. 1948) ........................................ 14
Williams v. Norris, 25 U.S. 117 (1827) .................... 17
Yee v. Escondido, 503 U.S. 519 (1992) ..................... 13
vii
OPINIONS BELOW
The judgment of the Court of Appeals is unpublished
and included in Petitioner’s Appendix at 1a. The
published opinions and orders of the District Court
are available at 610 F. Supp. 3d 73 (D.D.C. 2022),
659 F. Supp. 3d 21 (D.D.C. 2023), and 2023 WL
7552703.
JURISDICTION
The judgment of the DC Circuit was entered on May
20, 2025. Petitioner timely sought en banc review,
which was denied on June 18, 2025.
This Court has jurisdiction under 28 U.S.C. §
1254(1).
RELEVANT CONSTITUTIONAL PROVISIONS
This case involves the Takings Clause of the
5th Amendment, which states: “nor shall private
property be taken for public use, without just
compensation.” It involves the Contracts Clause,
Article I, Section 10, Clause1 of the Constitution: “No
State shall . . . pass any . . . Law impairing the
Obligation of Contracts”
1
INTRODUCTION
Recent petitions have raised similar questions.
This Court called for responses, received amicus
briefs in support, and then denied certiorari. See
Apartment Association v. Los Angeles, No. 21-788;
Gonzales v. Inslee, No. 23-935; G-Max v. New York,
No. 23-1148; 74 Pinehurst LLC v. New York, No. 221130; GHP v. Los Angeles, No. 24-435.
A split that should not exist1 continues to
metastasize. Innocent homeowners remain robbed of
tens of thousands of dollars. Justices Thomas and
Gorsuch recently dissented from further delay by
stating the obvious: “an eviction moratorium would
plainly seem to interfere with a landlord’s right to
exclude.” No. 24-435, 606 U. S. __ (2025).
Simultaneous with that dissent, the DC
Circuit held that Petitioner here fails to “state a
claim” under either the Takings Clause or the
Contracts Clause. This case is a clean vehicle to
address the continuing injustices and resolve circuit
splits on all four questions presented.
STATEMENT OF THE CASE
In 2020, the District of Columbia passed the
nation’s strictest eviction moratorium. All evictions,
and all filings for eviction, for residential and
commercial property, were categorically prohibited
and retroactively dismissed. No compensation was
made available. As Petitioner factually averred in
the Complaint below, it was “open season” on
landlords.
1 The merits were seemingly resolved a century ago.
2
Petitioner owned and had leased condominium
units. In all of them, tenants were given a statutory
right to breach leases, not pay a penny, and continue
occupying. Petitioner also had one pending eviction
suit, which was dismissed pursuant to the
moratorium. A constitutional challenge to the
moratorium was lodged defensively by landlords in
the DC Superior Court, which he joined. They
prevailed.
The
moratorium
was
held
unconstitutional on one ground, but the Contracts
Clause and Takings Clause were left “unaddressed.”
The District appealed. It requested the DC
Court of Appeals to reverse the declaratory judgment
while still leaving the Contracts Clause and Takings
Clause unaddressed. Petitioner, Appellee there in
2021, briefed both grounds and requested affirmance
on them. The DC Court of Appeals reversed the DC
Superior Court and left the Takings Clause and
Contracts Clause still unaddressed.
Petitioner, having spent two years raising
these claims with zero resolution, started over. He
filed a broad Complaint for declaratory judgment,
nominal damages, and other damages, statutorily
and as-applied, under the Takings Clause and
Contracts Clause. Specifically as to the Contracts
Clause, Petitioner plead impairment of all of
Plaintiff’s leases. The Contracts Clause prohibits the
passing of such a law, so Petitioner brought this
statutory challenge for declaratory judgment,
nominal damages, and other damages on this basis.
Petitioner plead the same under the Takings Clause,
statutorily and as-applied, seeking declaratory
judgment, nominal damages, and other damages.
3
The Complaint was removed to federal court
and assigned to Judge Trevor N. McFadden. No
hearing was held. It was then dismissed for failure to
state a claim. But Petitioner was happy: it appeared
that all he had to do was correct one fact as to
missing compensation and he would prevail upon
reconsideration. As to Penn Central, specifically, he
prevailed on its 1st prong: “the Moratorium has cost
him $36,400… This factor cuts in Gallo’s favor.”
Alexander Gallo v. District of Columbia, 610 F. Supp.
3d 73 (D.D.C. 2022). He lost the 2nd prong on the
counter-factual that “the District provided avenues
for Gallo to recoup some of his purported losses” Id,
at 22. On the 3rd prong, the dismissal was iffy: “The
District’s actions here legitimized a temporary
physical occupation of the property but only by
individuals whom landlords had invited.” Id, at 22.
On the Contracts Clause, the court addressed the
merits and found no substantial impairment
“Because the District provided programs to assist
landlords.” Id, at 14.
Unexplained Shifts in Constitutional Reasoning
Mr. Gallo filed for reconsideration by pointing
to a clear fact in his Complaint: “No compensation
was or is provided or promised by the District.”
Complaint, #4. Perhaps, he thought, this was
innocently overlooked. He looked forward to the
District Court’s published reasoning being applied to
corrected facts as stated in his Complaint.
Reconsideration was granted. But instead of
prevailing under consistent reasoning, Petitioner
received a dose of constitutional sorcery. He went
from winning to losing under Penn Central’s 1st
prong, onto which a floor to the 5th Amendment was
4
newly grafted: “Thirty-six thousand dollars is
undoubtedly a great hardship for Gallo. But the law
requires more.” 2023 WL 7552703. On the 2nd prong,
government
compensation
disappeared
from
relevance. He was now a “sophisticated individual”
who was “on notice of the degree of government
involvement in landlord-tenant relations.” On the 3rd
prong, the physical occupation in the first opinion
simply disappeared: “The regulation did not
‘legitimize[] a physical occupation’.” Id.
The same magic occurred with the Contracts
Clause. The court now sua sponte dismissed- with
prejudice- on a ground never raised by the District:
“The Court can quickly dispense with Gallo’s
Contract Clause claim… the Contract Clause is not
enforceable through § 1983.” Gallo v. DC, 2023 WL
7552703, at 7.
The DC Circuit Violates Knick v. Township of Scott
and Ex Parte Virginia
The result of three years of litigation: ignored
by two state courts, restart, then a counter-factual
dismissal, then reconsideration acknowledging no
compensation, then a new dismissal based on four
independent shifts in reasoning. Petitioner appealed
pro se and raised ten errors of constitutional law.
The DC Circuit did not find any of the ten
claimed errors to not be error. It chose instead to
ignore them and find “alternate” grounds for
affirmance. Primarily, as to Petitioner’s statutory
challenge, it simply declared contrary to the facts
pleaded that the District was compensating. “‘the
District offered $350 Million’…Gallo thus has not
stated a facial takings claim.” DC Circuit Judgment,
at 8. As to the as-applied claim, the DC Circuit
5
stated that he “could have” evicted the person the
complaint said couldn’t have been evicted and whom
the state court held in 2020 couldn’t have been
evicted. Compare DC Circuit Judgment, at 5 (“the
Filing Moratorium applied only to eviction actions
under D.C. Code § 16-1501, not ejectments under §§
16-1101”) to Superior Court Order, Alexander Gallo
v.
Andre
Hopkins,
2020-LTB-008032
(“the
moratorium on the filing of eviction cases applies
to…D.C. Code § 16-1101...”). Appendix H. For good
measure, the DC Circuit threw in a few more
alternate bases sua sponte.
Mr. Gallo petitioned for en banc review,
observing 10 new errors in this “alternate”
affirmance. Most notably, that belated compensation
by Congress in 2021 is not compensation provided
“together with” the moratorium in 2020, which
makes the moratorium a facial taking under Knick v.
Township of Scott, 139 S. Ct. 2162 (2019) even if that
money were belatedly available to Petitioner (it was
not). Also, that Petitioner “could have” evicted the
person a state court refused to evict, and thereby
pretending no state-imposed occupation occurred
here, violates Ex Parte Virginia, 100 U.S. 339 (1879)
(because a state court judge “acts in the name and
for the State, and is clothed with the State's power,
his act is that of the State”).
The petition for rehearing was denied without
comment. The case now arrives as a sua sponte
dismissal with prejudice on top of sua sponte
dismissal with prejudice, the result of four lower
courts over five years refusing to address these
clearly-plead violations of Constitutional rights.
6
REASONS FOR GRANTING THE PETITION
Petitioner will not belabor the points raised in
recent petitions this Court has reviewed. This case
adds three other unresolved splits on pressing
questions and clarifies how these moratoria are
clearly unconstitutional without compensation.
I.
Appellate Splits on all Questions Presented
are now Entrenched
a) Physical Taking
The 8th and Federal Circuits recently held that
challenges to Covid eviction moratoria state a claim
for physical taking. Heights Apartments, LLC v.
Walz, 30 F.4th 720 (8th Cir. 2022); Darby
Development v. United States, 112 F.4th 1017 (Fed.
Cir. 2024). The 9th Circuit held otherwise in GHP
Management v. Los Angeles, No. 23-55013 (9th Cir.
2024). The judgment below joined the 9th Circuit.2
Other circuits, during older moratoria, found
them to be takings. See Finn v. 415 Fifth Ave. Co,
153 F.2d 501 (2d Cir. 1946) (eviction moratorium
“does indeed take the lessor's property, though only
for a limited period and not without compensation”),
Porter v. Shibe, 158 F.2d 68 (10th Cir. 1946)
(moratorium takes “the right of possession of the
leased premises to which he would otherwise be
entitled”), and Rivera v. R. Cobian Chinea Co., 181
F.2d 974 (1st Cir. 1950) (“violates the Fifth
Amendment to the extent that it prohibits a landlord
from prosecuting an action of unlawful detainer
2 The District Court’s judgment expressly adopted the 9th
Circuit’s reasoning. Gallo v. DC, 2023 WL 7552703.
7
against a tenant”). The judgment here thus conflicts
with the 8th, 2nd, 10th, 1st, and Federal Circuits.
b) Regulatory Taking
The judgment appealed, including both the
lower court and DC Circuit opinions, holds that a
challenge to an uncompensated eviction moratorium3
causing (or imminently threatening to cause)
substantial losses fails to state a claim. It joins the
9th Circuit in GHP (“failed to state a claim for a Fifth
Amendment regulatory taking”).
However, the 8th Circuit held an identical
challenge states a claim. Heights Apartments, LLC v.
Walz, 30 F.4th 720 (8th Cir. 2022) (“plausibly give
rise to a Fifth Amendment takings claim” under
Penn Central). The California Court of Appeals found
a regulatory taking on the merits where the
economic impact to a landlord was less than a
thousand dollars. See Action Assn. v. Santa Monica
Rent Control Bd., 94 Cal.App.4th 587 (Cal. Ct. App.
2001) ((1) “Although the Board views those figures as
de minimis, we do not. A small taking is still a
taking.” (2) “contrary to the landlords' reasonable
investment - backed expectations” and (3) “treating
private landlords like banks.”). Yet despite the
California Court of Appeals finding a taking on the
merits of $718, and the Hawaii Supreme Court
finding one for $79 in Hasegawa v. Maui Pineapple
Co., 52 Haw. 327 (1970), the District Court here
established a legal floor somewhere above $34,000 to
state a claim.
3 There are grounds for eviction unrelated to payment. Here,
the challenge is limited to the issue of granting an occupant a
right to reside without paying rent, as the District did in 2020.
8
Despite the DC Circuit’s opinion holding
Petitioner here failed to state a claim for a facial
regulatory taking, other high courts have found
them. See State v. Griggs, 358 P.2d 174 (Ariz. 1960)
(“The statute here under review makes no provision
for just compensation and is hereby declared
unconstitutional.”); State v. Ravine Road Sewer
Commissioners, 39 N.J.L. 665, 10 Vroom, 665 (N.J.
1877) (“the act under which it is made is void, as it
directs the taking of these lands, without providing
compensation in the manner enjoined by the
constitution.”); Bigelow v. West Wisconsin Railway
Co., 27 Wis. 478 (1870) (“Unless the law which
purports to confer the power to take the land
provides for just compensation to the owner thereof,
it is in violation of the constitutional restriction, and
therefore void.”); Northwest Landowners Association
v. State, 2022 ND 150 (N.D. 2022) (“S.B. 2344 is an
unconstitutional taking on its face in violation of the
state and federal constitutions.”). New York’s highest
court held that a six-month moratorium in which
some insufficient compensation was guaranteed still
constituted a regulatory taking. Matter of Keystone
Assoc. v. Moerdler, 224 N.E.2d 700 (N.Y. 1966) (“this
statute must fall.”). The Federal Circuit found an
uncompensated DC moratorium to be a regulatory
taking. Benenson v. United States, 548 F.2d 939
(Fed. Cir. 1977). Connecticut’s high court found a
taking for “loss of rent” and declared the statute
void. McKeon v. New York, N. H. H.R. Co., 53 A. 656
(Conn. 1902).
In addition to relying on Penn Central,
Petitioner asserted a Lucas taking for a temporary
total loss. The judgment below rejected this with the
reasoning affirmed by the DC Circuit: “the law here
9
is not a per se regulatory taking under Lucas.” Gallo
v. DC, 2023 WL 7552703. However, other courts have
found Lucas takings for temporary moratoria. See
Keshbro v. City of Miami, 801 So. 2d 864 (Fla. 2001)
(“precluding prospectively temporary regulations
from treatment under Lucas elevates form over
substance and defies economic realities”), City of
Seattle v. McCoy, 4 P.3d 159 (Wash.Ct.App. 2000)
(“This constitutes a total taking, though not a
permanent taking”).
Non-Collectible Money Judgments
Petitioner’s Complaint alleged clearly that
money judgments for accrued arrearage are noncollectible. The 8th Circuit recognized this in Heights.
“Monetary relief obtained against a judgment-proof
individual is an illusory remedy, as has been
recognized by the Supreme Court.” Id, f.7.
The DC Circuit, however, opined contrary to
Petitioner’s pleaded facts that Petitioner failed to
state a claim because “the law did not stop them
from accruing liability for money damages over the
continued occupation of the units, such that Gallo
could ostensibly recoup the economic value of that
property.” DC Circuit Opinion at 8.
The opinions below here clearly conflict with
the
Circuit. They also conflict with state high
courts on the Takings Clause. See Brewster v. Rogers
Co., 169 N. Y. 73 (N.Y. 1901) (“the statute cannot be
upheld… the property owner cannot be relegated to
the doubtful responsibility or solvency of a private
corporation or of an individual”); Attorney General v.
Old Colony Railroad, 160 Mass. 62 (1893) (“the
provision for adequate compensation certainly ought
to be more than a mere right of action against a
8th
10
private person or corporation, with the risk of never
obtaining satisfaction, and the compensation when it
is made must be made in money.”); State v. Beackmo,
8 Blackf. 246 (Ind. 1846) (“in particular instances the
compensation might be satisfactory, still we should
regard the law objectionable.”).
c) Contracts Clause
The judgment on the Contracts Clause rests
on the following reasoning: “in times of emergencies,
the government could pass ordinarily impermissible
laws.” Gallo v. DC, 610 F. Supp. 3d 73 (D.D.C. 2022)
(at 13), and that this Court’s precedents prior to 1934
do not “control given more recent, relevant precedent
about a legislature’s ability to modify private
contracts to ‘protect[] a basic interest of society’…
Gallo’s reference to a nineteenth century case
involving mortgage contracts, Barnitz v. Beverly, 163
U.S. 118 (1896), is unavailing.” Id, at 14.
The 2nd Circuit expressly rejected this notion
in Melendez v. New York City, 16 F.4th 992 (2d Cir.
2021) (“The Contracts Clause's Continued Vitality”).
The 8th Circuit rejected it in Heights Apartments,
LLC v. Walz, 30 F.4th 720 (8th Cir. 2022) (“the EOs
substantially impaired its contractual bargain with
its tenants.”).
The DC Circuit’s alternate-basis reasoning,
holding that a tenant-at-will has no “contract” with
the owner so therefore no claim is stated, splits with
the Federal Circuit which held such contracts are
implied and actionable against the government.
“Such a contract is implied because no one has a
right, of course, to occupy another's premises without
paying for it” Niagara Falls Bridge Commission v.
United States, 111 Ct. Cl. 338 (1948).
11
d) Actionability under USC 1983
This judgment joins a decades-running circuit
split on whether the Contracts Clause is actionable
under the civil rights statute. Compare Crosby v.
City of Gastonia, 635 F.3d 634 (4th Cir. 2011) (not
actionable under § 1983), and Kaminski v. Coulter,
865 F.3d 339 (6th Cir. 2017) (same), with S. Cal. Gas
Co. v. City of Santa Ana, 336 F.3d 885, 886–87 (9th
Cir. 2003) (actionable). Three circuits have
“assumed” actionability. Watters v. Bd. of Sch. Dirs.
of City of Scranton, 975 F.3d 406 (3d Cir. 2020);
Alarm Detection Sys., Inc. v. Village of Schaumburg,
930 F.3d 812 (7th Cir. 2019) (same); Heights
Apartments, LLC v. Walz, 30 F.4th 720 (8th Cir.
2022) (same). Further percolation is unnecessary.
II.
The Judgment Below is Wrong
Takings Clause
Justices Thomas and Gorsuch recently deduced
what was established long ago and even admitted by
governments before this Court:
“It constitutes but a taking by due process of
law…a concession appropriate to ‘exceptional times
and places in which the very foundations of public
welfare could not be laid without requiring
concessions from individuals to each other upon due
compensation” Marcus Brown Holding Co. v.
Feldman, 256 U.S. 170, 183 (1921) (Argument of
Attorney General of New York) (emphasis added); “It
is immaterial whether such statutes are deemed to
rest on the right of eminent domain (113 U. S. 19) or
upon the power to regulate use even to the extent of
coercing it upon fair compensation where the public
interest so requires” Block v. Hirsh, 256 U.S. 135,
12
149 (1921) (argument of District of Columbia)
(emphasis added).
This Court upheld an eviction moratorium as
a compensated taking. “The standard of the statute is
as definite as the ‘just compensation’ standard
adopted in the Fifth Amendment to the Constitution,
and therefore ought to be sufficiently definite to
satisfy the Constitution.” Levy Leasing Co., Inc. v.
Siegel, 258 U.S. 242 (1922). This Court has called an
eviction moratorium an exercise of eminent domain.
“Where the exercise of the eminent domain power is
rationally related to a conceivable public purpose,
the Court has never held a compensated taking to be
proscribed by the Public Use Clause. See…Block v.
Hirsh” Hawaii Housing Authority v. Midkiff, 467
U.S. 229, 242 (1984). This court found an
appropriation where an emergency law enabled a
bankrupt to retain possession of land and the
creditor was thereby “injured by the denial of
possession” Louisville Joint Stock Land Bank v.
Radford, 295 U.S. 555 (1935).
New York’s highest court noted similarly. See
People ex rel. Durham Realty Corp. v. La Fetra, 230
N.Y. 429 (N.Y. 1921) (“…Unquestionably some
taking of private property for the benefit of a class of
individuals is the result of the housing laws…If
property rights are here invaded, in a degree,
compensation therefor has been provided”).
These holdings have vanished beneath talk of
“voluntary” and “invited” occupancy, snipped without
factual context from Yee v. Escondido, 503 U.S. 519
(1992) (where the owner desires to merely raise the
price at consensual lease renewal, such occupancy is
“not forced upon them by the government”).
13
The confusion caused by Yee is factual, not
legal. It is urgent that this Court distinguish Yee’s
facts. While Yee entailed no force, an eviction
moratorium does because the “invitation” has ended.
See Stern v. Equitable Trust Co., 144 N.E. 578 (N.Y.
1924) (in a moratorium: “The law forces it upon
him”). There are no “invited” “tenants” residing in
default under moratoria over the owner’s objection.
See Western Un. Tel. Co. v. Hansen Rowland Corp.,
166 F.2d 258 (9th Cir. 1948) (“the appellant ceased to
be a tenant of the appellee and became a
trespasser”); Hinsdale v. White, 6 Hill & Den. 507
(N.Y. 1844) (“from the day of the forfeiture…The
tenant may and should be considered a trespasser
from that time”). This Court recognized the same in
Home Building & Loan Association v. Blaisdell, 290
U.S. 398, 441 (1934): (“the tenant defendants herein,
by law older than the state of New York, became at
the landlord's option trespassers on October 1, 1920”)
Contracts Clause
A dismissal for failure to state a claim under
the Contracts Clause should be impossible. “Whether
the State had or had not impaired the obligation of
this contract was not a question which could be
properly passed upon, on a motion to dismiss, so long
as the complainant claimed in its bill that it had that
effect” City Railway Co. v. Citizens' Railroad Co., 166
U.S. 557, 564 (1897).
The dismissal below is equally wrong on the
law. This Court did not blot the Contracts Clause out
of existence in 1934. It unanimously reaffirmed, in
1935, that a moratorium violates the Constitution
where it grants “undisturbed possession for the
debtor and without a dollar for the creditor.” W. B.
14
Worthen Co. v. Kavanaugh, 295 U.S. 56 (1935).- Such
is precisely the factual assertion in the Complaint in
this case.
Leases require “a sum of money on a certain
day, the contract binds him to pay that sum on that
day, and this is its obligation. Any law which
releases a part of this obligation must, in the literal
sense of the word, impair it.” Sturges v.
Crowninshield, 17 U.S. 122 (1819). Categorical cankicking of payments without other remedy or
compensation is not permissible, because “if the
legislature can delay payment by limitation or
exemption laws for six months they could do it for six
years” Welsh v. Cross, 146 Cal. 621 (Cal. 1905). “If
the Legislature can enlarge the time one day in
which the party, is to perform what the legal
obligation of his contract requires at the time it is
entered into, it may do it for a hundred days; and if
for this period, then it may equally well do it for a
hundred years.” Webster v. Rose, 53 Tenn. 93 (1871).
New York’s high court recognized that
compensation provides the reasonability for an
eviction moratorium under the Contracts Clause:
“that provision for the payment of reasonable
compensation to a landlord who had not even
consented to the lease was regarded as reasonable
and appropriate to meet the demands of a
situation…” Twentieth Century Associates v.
Waldman, 294 N.Y. 571 (N.Y. 1945).
The DC Circuit’s Alternate Dismissal is Wrong
The alternate dismissal holding Petitioner’s
statutory challenge fails due to a Complaint’s failure
to “quantify” post-enactment damages violates this
Court’s facial regulatory taking standard in Suitum
15
v. Tahoe Regional Planning Agency, 520 U.S. 725
(1997) (“Such ‘facial’ challenges to regulation are
generally ripe the moment the challenged regulation
or ordinance is passed”).
The alternate sua sponte dismissal with
prejudice by calling the Complaint “prolix” is
inappropriate. Petitioner’s initial 10-page complaint
was called “terse” and ordered lengthened by the
District Court. If Petitioner’s compliance yielded a
pleading now held sua sponte on appeal to be
“prolix,” dismissal is wrong. See Simmons v.
Abruzzo, 49 F.3d 83 (2nd Cir. 1995) (because “the 15page complaint, though prolix, gave the defendants
notice of the substance of certain claims that were
not frivolous on their face, a with-prejudice dismissal
of even a subsequent similar amended complaint
would be inappropriate”).
The alternative-basis dismissal, somehow
simultaneously holding sua sponte that Petitioner
provided too few facts, violates this Court’s clear
holding that “the Federal Rules of Civil Procedure do
not require a claimant to set out in detail the facts
upon which he bases his claim” Conley v. Gibson, 355
U.S. 41 (1955).
III.
This Case is a Clean Vehicle
A judgment of dismissal with prejudice for
failure to state a claim, of a pro se Complaint that
must be liberally construed, presents a uniquely
clean vehicle to resolve the questions presented.
Unlike Apartment Association (No. 21-788), this is
not an appeal from a denial of preliminary injunction
requiring this Court to weigh equities or credit
factual assertions. Unlike GHP (No. 24-425),
Petitioner both filed an eviction in state court
16
(whereupon all remedy was denied by the state court
under its categorical moratorium challenged here)
and sought nominal damages and declaratory relief
for a statutory claim and preserved all grounds.
The reasoning below is irrelevant to this
Court’s de novo review of whether Petitioner states a
claim. The “reasoning which conducted the [c]ourt to
its judgment, may explain the views and motives of
the [c]ourt, but does not form a part of its judgment.”
Williams v. Norris, 25 U.S. 117 (1827). “This Court
reviews judgments, not statements in opinions.”
Black v. Cutter Laboratories, 351 U.S. 292 (1956).
CONCLUSION
An eviction moratorium is now a taking before
the Federal Circuit but not the DC Circuit. The same
imposition, at the same time and place, by federal
and municipal sovereigns, is simultaneously a taking
and not a taking. This cannot be.
The public interest, metastasizing circuit splits,
the clear error of this judgment as to both the
statutory and as-applied claims, and the debasement
of the Penn Central test all warrant this Court’s
intervention.
Respectfully submitted,
/s/ Saeid B. Amini
_____________________________
SAEID B. AMINI
THE LAW OFFICES OF SAEID B. AMINI
730 24th Street, NW, Suite One
Washington, DC 20037
(202) 965-8887
sbajd98@yahoo.com
Counsel of Record for Petitioner
17
APPENDIX
1a
APPENDIX CONTENTS
Appendix A: Denial of Panel Rehearing .................. 3a
Appendix B: Denial of En Banc Review ................... 4a
Appendix C: DC Circuit Judgment .......................... 5a
Appendix D: Second Opinion of District Court ...... 22a
Appendix E: Order Granting Reconsideration ...... 39a
Appendix F: First Opinion of District Court.......... 50a
Appendix G: Relevant Statutory Provisions .......... 78a
Appendix H: DC Superior Court Ruling ................ 79a
2a
Appendix A: Denial of Panel Rehearing
COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT
No. 23-7158
September Term, 2024
FILED ON: June 18, 2025
Alexander Gallo,
Appellant,
v.
District of Columbia, a municipal corporation,
Appellee
BEFORE: Wilkins and Rao, Circuit Judges; and
Edwards, Senior Circuit Judge
ORDER
Upon consideration of appellant’s petition for panel
rehearing filed on June 3, 2025, it is
ORDERED that the petition be denied.
PER CURIAM
FOR THE COURT: Clifton B. Cislak, Clerk
BY: /s/ Daniel J. Reidy, Deputy Clerk
3a
Appendix B: Denial of En Banc Review
COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT
No. 23-7158
September Term, 2024
FILED ON: June 18, 2025
Alexander Gallo,
Appellant,
v.
District of Columbia, a municipal corporation,
Appellee
BEFORE: Srinavasan, Chief Judge; Henderson,
Millet, Pillard, Wilkins, Katsas, Rao, Walker, Childs,
Pan, and Garcia, Circuit Judges; and Edwards,
Senior Circuit Judge
ORDER
Upon consideration of appellant’s petition for
rehearing en banc, and the absence of a request by
any member of the court for a vote, it is
ORDERED that the petition be denied.
PER CURIAM
FOR THE COURT: Clifton B. Cislak, Clerk
BY: /s/ Daniel J. Reidy, Deputy Clerk
4a
Appendix C: DC Circuit Judgment
COURT OF APPEALS FOR THE DISTRICT
OF COLUMBIA CIRCUIT
No 23-7158
September Term, 2024
FILED ON: MAY 20, 2025
Alexander Gallo,
Appellant,
v.
District of Columbia, a municipal corporation,
Appellee
Appeal from the United States District Court
for the District of Columbia
(No. 1:21-cv-03298)
Before: WILKINS and RAO, Circuit Judges,
and EDWARDS, Senior Circuit Judge.
JUDGMENT
This appeal was considered on the record and
on the briefs and oral arguments of the parties. The
panel has afforded the issues full consideration and
has determined that they do not warrant a published
opinion. See FED. R. APP. P. 36; D.C. CIR. R. 36(d). It
is ORDERED AND ADJUDGED that the order of the
United States District Court for the District of
Columbia be AFFIRMED.
5a
In early 2020, the District of Columbia (“D.C.”)
enacted emergency legislation to address issues
caused by the COVID-19 pandemic. Among those laws
were two amendments to the Rental Housing Act of
1980, which precluded landlords from initiating
eviction proceedings against protected tenants and
paused ongoing eviction proceedings. PlaintiffAppellant Alexander Gallo, a landlord, purchased
property at a foreclosure sale just before the pandemic
and believed that the moratoria made it impossible for
him to remove the former owner from the premises.
He thus filed suit, pro se, to challenge the moratoria
as unconstitutional in violation of the Contracts
Clause and the Takings Clause. The District Court
permitted Gallo to amend his complaint several times,
but ultimately dismissed the pleading for failure to
state a claim. We affirm, albeit on alternative
grounds, because Gallo’s complaint fails to allege the
elements of either constitutional claim.
I.
The D.C. Rental Housing Act of 1980 (“RHA”)
protects statutory tenants, including by imposing
procedures and safeguards for eviction proceedings.
The Act defines a “tenant” as “a tenant, subtenant,
lessee, sublessee, or other person entitled to the
possession, occupancy, or the benefits of any rental
unit owned by another person.” D.C. CODE § 423501.03(36) (2001). Under the D.C. Code, “[w]hen a
person detains possession of real property without
right, or after his right to possession has ceased,” a
landlord can file a request with the Superior Court to
“issue a summons . . . to the party complained of to
appear and show cause why judgment should not be
6a
given against him for the restitution of possession.” Id.
§ 16-1501 (1980). Gallo owns and manages ten
condominium units in the District. In February 2020,
he purchased a condo at a foreclosure sale (the
“Foreclosure Unit”), which was previously owned by
Andre Hopkins. Gallo noticed Hopkins that he must
quit the premises by May 5, 2020.
But on March 11, 2020, Mayor Muriel Bowser
declared a public health emergency due to COVID-19.
See Mayor’s Order 2020-046, 67 D.C. Reg. 2961 (Mar.
11, 2020). Shortly thereafter, the D.C. Council
amended the eviction restrictions set forth in the
RHA.
See
COVID-19
Response
Emergency
Amendment Act of 2020, D.C. Act 23-247, § 308(b), 67
D.C. Reg. 3093, 3102–03 (Mar. 17, 2020) (amending
D.C. CODE § 42-3505.01(k)) (“Eviction Moratorium”).
After amendment, it precluded landlords from
evicting tenants “[d]uring a period of time for which
the Mayor has declared a public health emergency,”
D.C. CODE § 42-3505.01(k)(3) (2020), except in cases
of illegal conduct, undue hardship on neighbors, and
abandonment, id. § 42-3505.01(k-1) (2020). On April
10, 2020, the D.C. Council paused its debt collection
provisions pending the duration of the public health
emergency. See COVID-19 Response Supplemental
Emergency Amendment Act of 2020, D.C. Act 23-286,
§ 207, 67 D.C. Reg. 4178, 4198–99 (Apr. 10, 2020).
By May 5, 2020, Hopkins had not vacated the
Foreclosure Unit, so Gallo filed a complaint for
possession to remove him from the premises. But on
May 13, 2020, the District passed another emergency
law.
See
Coronavirus
Omnibus
Emergency
Amendment Act of 2020, D.C. Act 23-317, § 10, 67 D.C.
Reg. 5235, 5243 (May 13, 2020) (“Filing Moratorium”).
7a
This Act amended the District’s eviction summons
provision, adding a subsection that stated: “During a
period of time for which the Mayor has declared a
public health emergency . . . and for 60 days
thereafter, the person aggrieved shall not file a
complaint seeking relief pursuant to this section.”
D.C. CODE § 16-1501(b) (2020).
Gallo and other landlords sued in Superior
Court to challenge the moratoria. On December 16,
2020, the court ruled that the moratoria were
unconstitutional in violation of the landlords’ due
process right of access to the courts. Borger Mgmt.,
Inc. v. Hernandez-Cruz, No. 2020 LTB 006637, 2020
WL 9720202 (D.C. Super. Ct. Dec. 16, 2020). The
District defended its emergency legislation before the
D.C. Court of Appeals, which reversed and ruled that
the moratoria were facially constitutional. District of
Columbia v. Towers, 260 A.3d 690, 696 (D.C. 2021).
Gallo initiated this action on November 19,
2021, in Superior Court. On December 16, 2021, the
District removed the action to District Court. The
District Court granted the District’s motion to
dismiss, Gallo v. District of Columbia, 610 F. Supp. 3d
73, 91 (D.D.C. 2022), but then granted
reconsideration, allowing Gallo to amend his
complaint, Gallo v. District of Columbia, 659 F. Supp.
3d 21, 26 (D.D.C. 2023). Gallo filed two amended
complaints, and the District renewed its motion to
dismiss, which once again was granted. Gallo v.
District of Columbia, No. 21-cv-3298 (TNM), 2023 WL
7552703, at *7 (D.D.C. Nov. 14, 2023). This timely
appeal followed. We appointed amicus to present
arguments in support of Gallo’s position that amicus
deemed potentially meritorious.
8a
II.
“We review the dismissal of constitutional
claims de novo.” Fraternal Ord. of Police, Metro. Police
Dep’t Lab. Comm., D.C. Police Union v. District of
Columbia, 45 F.4th 954, 957 (D.C. Cir. 2022). “A
plaintiff’s complaint need only provide ‘a short and
plain statement of the claim showing that the pleader
is entitled to relief’ in order to survive a motion to
dismiss.” Atherton v. D.C. Off. of Mayor, 567 F.3d 672,
681 (D.C. Cir. 2009) (quoting FED. R. CIV. P. 8(a)(2)).
“We accept the operative complaint’s well-pleaded
factual allegations as true and draw all reasonable
inferences in [the plaintiff’s] favor.” Ho v. Garland,
106 F.4th 47, 50 (D.C. Cir. 2024) (internal quotation
marks and citations omitted). “A pro se complaint
must be held to less stringent standards than formal
pleadings drafted by lawyers, but even it must plead
factual matter that permits the court to infer more
than the mere possibility of misconduct.” Jones v.
Horne, 634 F.3d 588, 596 (D.C. Cir. 2011) (internal
quotation marks and citations omitted). The
permissive standard is not, however, “a license for a
plaintiff filing pro se to ignore the Federal Rules of
Civil Procedure.” Moore v. Agency for Int’l Dev., 994
F.2d 874, 876 (D.C. Cir. 1993) (quotation omitted).
“[N]othing in our case law requires a district court to
go on a fishing expedition for new claims.” Greenhill v.
Spellings, 482 F.3d 569, 573 (D.C. Cir. 2007).
III.
Gallo urges us to reverse the dismissal of his
Second Amended Complaint (“SAC”) and revive his
Contracts Clause and Takings Clause claims. Courtappointed amicus agrees with the District that Gallo
has failed to state a claim under the Contracts Clause
9a
and has not stated a Takings Clause claim related to
the Foreclosure Unit. But amicus contends that the
SAC alleges sufficient facts to state a takings claim as
to tenants other than Hopkins. Because we disagree
with Gallo on all counts, we affirm the dismissal of the
SAC in its entirety.
A.
Gallo first challenges the District Court’s
dismissal of his Contracts Clause claim, brought
under 42 U.S.C. § 1983. The District Court sua sponte
raised and resolved against Gallo the issue of whether
such a claim is cognizable under § 1983. See Gallo,
2023 WL 7552703, at *4. Gallo correctly points out
that the Circuits are split as to whether § 1983
permits a plaintiff to bring a claim under the
Contracts Clause. Compare Crosby v. City of Gastonia,
635 F.3d 634, 641–43 (4th Cir. 2011) (holding that the
Contracts Clause is not actionable under § 1983), and
Kaminski v. Coulter, 865 F.3d 339, 346–47 (6th Cir.
2017) (same), with S. Cal. Gas Co. v. City of Santa
Ana, 336 F.3d 885, 886–87 (9th Cir. 2003) (per curiam)
(concluding otherwise). Other courts have declined to
weigh in. See Watters v. Bd. of Sch. Dirs. of City of
Scranton, 975 F.3d 406, 412–16 (3d Cir. 2020)
(assuming that § 1983 confers private right of action
for Contracts Clause claim and affirming dismissal);
Alarm Detection Sys., Inc. v. Village of Schaumburg,
930 F.3d 812, 825 n.2 (7th Cir. 2019) (same); Heights
Apartments, LLC v. Walz, 30 F.4th 720, 727–32 (8th
Cir. 2022) (assuming § 1983 applies and reversing
dismissal because complaint sufficiently plead
Contracts Clause violation). We too need not wade into
this territory, because even assuming that the
10a
Contracts Clause is cognizable under § 1983, Gallo has
failed to allege the requisite elements.
The Contracts Clause provides that “[n]o State
shall . . . pass any . . . Law impairing the Obligation of
Contracts.” U.S. CONST. art. I, § 10, cl. 1. Under the
D.C. Home Rule Act, this clause applies to the District.
D.C. CODE § 1-203.02 (2001). To articulate a violation
of the Contracts Clause, one must allege that the
challenged law (1) applies retrospectively to an
existing contract, (2) “substantially” impairs those
existing contract rights, D.C. Police Union, 45 F.4th at
961 (citing Sveen v. Melin, 584 U.S. 811, 819 (2018)),
and (3) is not “drawn in an appropriate and reasonable
way to advance a significant and legitimate public
purpose,” Sveen, 584 U.S. at 819 (internal quotation
marks omitted). The District argues that Gallo has
failed to allege a Contracts Clause violation at every
step.
Gallo’s failure to allege the existence of a
contract is fatal to his Contracts Clause claim. Under
D.C. law, an essential element of contract formation
“is a manifestation of agreement or mutual assent by
the parties to the terms thereof.” Davis v. Winfield,
664 A.2d 836, 838 (D.C. 1995) (internal quotation
marks and citations omitted). “[I]n other words, to
establish a contract the minds of the parties must be
in agreement as to its terms.” Id. (quoting Klein v.
Weiss, 395 A.2d 126, 141 (Md. 1978)). “Mutual assent
to a contract . . . is most clearly evidenced by the terms
of a signed written agreement, but such a signed
writing is not essential to the formation of a contract.”
Id. “The parties’ acts at the time of the making of the
contract are also indicative of a meeting of the minds.”
Id.
11a
The SAC alleges that Gallo purchased the
Foreclosure Unit at an auction in February 2020 and
took title to the property, where the prior owner,
Hopkins, still lived. Gallo noticed Hopkins to
terminate his tenancy at will. Following the Filing
Moratorium, Hopkins did not vacate the condo. Gallo
does not allege that he and Hopkins had any
contractual relationship, for instance, through the
mutual execution of a lease.
District law provides that “a foreclosure sale of
property extinguishes any subordinate leases with the
mortgagor and the tenants who remain on the
property stand as tenants-at-will in relation to the
new owner.” Banks v. E. Sav. Bank, 8 A.3d 1239, 1243
(D.C. 2010) (internal quotation marks and citations
omitted); D.C. CODE § 42-522 (2001) (“[I]n case of a
sale of real estate under mortgage or deed of trust or
execution, and a conveyance thereof to the purchaser,
the grantor in such mortgage or deed of trust,
execution defendant, or those in possession claiming
under him, shall be held and construed to be tenants
at will.”). The D.C. Court of Appeals has made clear
that “[a]ssuming [persons] were tenants at will after
foreclosure, they were not in a contractual
relationship with [the owner], which purchased the
property at foreclosure.” Taylor v. First Am. Title Co.,
509 A.2d 96, 97 (D.C. 1986). The SAC contains no
allegations to subvert the rule that Hopkins, a postforeclosure tenant at will, had no contractual
relationship with Gallo. And Gallo himself has
disclaimed that Hopkins was his tenant.
We thus affirm the dismissal of Gallo’s
Contracts Clause claim and deny his Motion for
Judicial Estoppel as moot.
12a
B.
Gallo also fails to state a Takings Clause claim
as to the Foreclosure Unit. The Fifth Amendment
provides that “private property [shall not] be taken for
public use, without just compensation.” U.S. CONST.
amend. V. “The right to exclude is one of the most
treasured rights of property ownership.” Cedar Point
Nursery v. Hassid, 594 U.S. 139, 149 (2021) (internal
quotation marks omitted). It is “one of the most
essential sticks in the bundle of rights that are
commonly characterized as property.” Kaiser Aetna v.
United States, 444 U.S. 164, 176 (1979). “When the
government effects a physical appropriation of private
property for itself or another—whether by law,
regulation, or another means—a per se physical
taking has occurred.” Cmty. Hous. Improvement
Program v. City of New York, 59 F.4th 540, 550 (2d
Cir.), cert. denied, 144 S. Ct. 264 (2023). “The
permanence and absolute exclusivity of a physical
occupation distinguish it from temporary limitations
on the right to exclude. Not every physical invasion is
a taking.” Loretto v. Teleprompter Manhattan CATV
Corp., 458 U.S. 419, 435 n.12 (1982). For instance, in
Loretto, the Court found there to be a physical taking
under a New York statute which required landlords to
facilitate the installation of permanent cable facilities
on their properties. This statute infringed on
landlords’ core property rights because a permanent
occupation of physical property deprives the owner of
the “right to possess the occupied space himself” or
“exclude the occupier from possession and use of the
space,” “forever denies the owner any power to control
the use of the property,” and hinders the owner’s
ability to sell the occupied property. Id. at 435–36.
13a
Here, however, Gallo has not alleged a taking
because the challenged moratoria did not infringe
upon his right to exclude Hopkins from the
Foreclosure Unit through the District’s civil ejectment
process. The Filing Moratorium applied only to
eviction actions under D.C. Code § 16-1501, not
ejectments under §§ 16-1101 et seq. And the Eviction
Moratorium did not apply to the Foreclosure Unit at
all, as Hopkins was not a protected “tenant” under the
RHA. See D.C. CODE § 42-3505.01(k) (limiting
Eviction Moratorium to “tenant[s]”); id. § 423501.03(36) (defining tenant as “a tenant, subtenant,
lessee, sublessee, or other person entitled to the
possession, occupancy, or the benefits of any rental
unit owned by another person”). Since Hopkins
formerly owned the Foreclosure Unit and did not
possess a lease, Gallo and Hopkins never had a
landlord-tenant relationship that would protect
Hopkins under the RHA. Under District of Columbia
law, “[a] landlord-tenant relationship does not arise by
mere occupancy of the premises; absent an express or
implied contractual agreement, with both privity of
estate and privity of contract, the occupier is in
adverse possession as a ‘squatter.’” Nicholas v.
Howard, 459 A.2d 1039, 1040 (D.C. 1983) (quoting 3
GEORGE W. THOMPSON, THOMPSON ON REAL
PROPERTY § 1029, at 87–90 (1980)). For instance,
the D.C. Court of Appeals declined to extend
protection under a rent-control statute to tenants at
will who held over after foreclosure, reasoning that
“tenancy arising from mere possession is not that
which is referred to in the rent control statute.”
Simpson v. Jack Spicer Real Est., Inc., 396 A.2d 212,
215 (D.C. 1978) (interpreting D.C. Rental
14a
Accommodations Act of 1975), which defines “tenant”
nearly identically to the RHA). Hopkins was not a
tenant protected by the RHA. See City Ctr. Real
Estate, LLC v. 1606 7th Street NW, LLC, 263 A.3d
1036, 1043 (D.C. 2021) (“[T]he term ‘tenant’ in the
RHA inescapably means the leaseholder and does not
extend to a person who simply occupies a space in a
residential way.”) (internal quotation marks and
citations omitted).
The moratoria thus did not eliminate all
remedies available to Gallo to remove Hopkins, a nontenant, for failure to quit the premises. Gallo could
have removed Hopkins through civil ejectment, which
is available if “the defendant is wrongfully exercising
acts of ownership over the premises.” D.C. CODE § 161103 (2001). Because the moratoria did not purport to
amend the ejectment provision, Coronavirus Omnibus
Emergency Act of 2020, D.C. Act 23-317, § 10, 67 D.C.
Reg. 5235, 5243 (May 22, 2020) (amending the RHA to
provide that pending a public health emergency, “the
person aggrieved shall not file a complaint seeking
relief pursuant to this section”) (emphasis added),
ejectment supplied the vehicle for landlords like Gallo
to evict those not protected by Section 16-1501, like
Hopkins. Cf. Molla v. Sanders, 981 A.2d 1197, 1201–
02 (D.C. 2009) (recognizing “that appellant could not
evict appellee through an action for ejectment, but
must follow the eviction procedure set forth in the
[RHA]” because a valid lease “permitted appellee to
resist ejectment and continue her tenancy with the
new owner”).
Here, because the SAC alleges that Hopkins
was a trespasser in the Foreclosure Unit following the
foreclosure sale (rather than a tenant), nothing in the
15a
moratoria prevented Gallo from removing him. Gallo
alleges that Hopkins began to unlawfully possess the
Foreclosure Unit when “he did not quit the premises
by the deadline of May 5, 2020,” at which point
“Hopkins was no longer in privity with” Gallo, and
they “ceased to be in any ‘Relationship.’” A186 (SAC
¶¶ 8, 9); see also A187 (SAC ¶ 12) (Gallo “terminated”
Hopkin’s “right to possession” as of that date)
(emphasis omitted). “On May 5, 2020, the former
tenant Hopkins became a trespasser in the
Foreclosure Unit.” A187 (SAC ¶ 10) (emphasis
omitted); id. (SAC ¶ 12) (describing Hopkins as
“squat[ting]”). The SAC never alleges that Gallo
attempted to remove Hopkins through ejectment.
Although Gallo argues on reply for the first time that
“Hopkins was sued in ejectment,” Appellant Reply Br.
5 (emphasis added), such a factual allegation does not
appear in the SAC. We thus dismiss Gallo’s takings
claim for failure to state a claim.
C.
Finally, we decline to read into the pleading
claims as to unspecified other tenants, because Gallo
failed to allege the requisite facts to support any such
claim with sufficient specificity. Dismissal of the
claims as to the Foreclosure Unit is dispositive, unless
Gallo also alleged constitutional violations as to other
tenants. Gallo urges us to read the SAC as
encompassing Contracts Clause and Takings Clause
claims as to other units, and court-appointed amicus
argues that Gallo has alleged a takings claim as to
tenants other than Hopkins. The District argues that
any such claim is forfeited for failure to raise below or
on appeal and the SAC is not fairly read as pleading
16a
claims as to tenants other than Hopkins. The District
has the better of this dispute.
After the District moved to dismiss Gallo’s First
Amended Complaint, Gallo clarified in his opposition
that he read his pleading as concerning “all [his]
condos and all [his] leases, requesting nominal
damages, declaratory judgment, and mental anguish.”
Pl.’s Opp’n to District’s Mot. to Dismiss Am. Compl.,
Gallo, No. 21-cv-3298 (D.D.C. May 9, 2023), ECF No.
44, at 1 (emphasis omitted). As such, the District
Court gave Gallo a chance to amend his pleading,
recognizing that Gallo “sa[id] that he is suing for other
rental units” besides the Foreclosure Unit, but that he
gave “almost no information about them.” A182. The
District Court ordered Gallo to amend his complaint
to “clarify which claims apply to which units.” A183.
After he did so, Gallo’s SAC alleged that after
the Filing Moratorium, “[e]very occupant was now
immune from suit in the event they decided to stop
paying rent going forward.” A187 (SAC ¶ 12)
(emphasis omitted). It further stated that “all of
Plaintiff’s
leases
were
thus
made
legally
unenforceable, leaving him in a precarious state of
being personally liable for $7,000 per month in
expenses while having his ability to enforce leases
withdrawn.” Id. (SAC ¶ 14). The SAC alleges that in
Spring 2021, “some of Plaintiff’s lessees began
breaching their leases (not paying) while Plaintiff had
no remedy,” which “continued for six months,” such
that one tenant accrued $6,000 in unpaid rent. A191
(SAC ¶¶ 32, 34). “Accordingly, two of Plaintiff’s lessees
became trespassers in spring 2021, while he was
compelled . . . to house them for free. The Filing Ban
thus compelled the occupancy of trespassers.” Id.
17a
(SAC ¶ 33) (footnote omitted). “Another lessee
simultaneously defaulted while Plaintiff had no
remedy. As of summer 2021, Plaintiff thus had three
units paying zero while he had no remedy.” A192 (SAC
¶ 35).
But Gallo neither identifies particular tenants
that he desired to evict, nor quantifies the lost rent, if
any. The SAC does not seek unpaid rent from any
units other than the Foreclosure Unit. Instead, the
SAC suggests that some tenants made up for
nonpayment, A194 (“Some people who ‘accrued
arrearage’ paid the loot back.”), and Gallo conceded at
argument that he was compensated to some
unspecified degree, Oral Arg. Tr. 8:24–9:11. While he
articulated some additional factual allegations as to
other units, Gallo entirely failed to comply with the
District Court’s order that he clarify which claims
applied to which units. Notwithstanding our liberal
pleading standards for pro se litigants, we “are far less
charitable when one or more amended pleadings
already have been filed with no measurable increase
in clarity.” 5 CHARLES ALAN WRIGHT & ARTHUR
R. MILLER, FED. PRAC. & PROC. § 1217 (4th ed.
2025); cf. FED. R. CIV. P. 41(b) (permitting dismissal
for failure “to comply with . . . a court order”).
Here, “the complaint failed to articulate either
the required factual or legal bases for his requested
relief,” reflecting plaintiff’s “complete refusal to
cooperate” with the District Court’s orders granting
leave to amend. Karim-Panahi v. U.S. Cong., Senate
& House of Representatives, 105 F. App’x 270, 274
(D.C. Cir. 2004) (per curiam) (affirming dismissal
where, “[f]or example, the appellant’s causes of action
sought relief for alleged wrongs against groups of
18a
people, many of which he is not even part” and “other
causes of action sought relief for the failure of the
government to provide certain services or benefits, for
which the appellant has pled no entitlement”);
Kamdem-Ouaffo v. Huczko, 810 F. App’x 82, 85 (3d
Cir. 2020) (per curiam) (affirming dismissal where the
trial court provided “an experienced pro se litigant[]
with multiple opportunities to properly plead his
case,” including “specific instructions for reworking
the pleading in a comprehensible manner”) (footnote
omitted); cf. Salahuddin v. Cuomo, 861 F.2d 40, 42 (2d
Cir. 1988) (reaffirming courts’ “power to dismiss a
prolix complaint without leave to amend in
extraordinary circumstances, such as where leave to
amend has previously been given and the successive
pleadings remain prolix and unintelligible”). Gallo’s
repeated failure to identify other potential claims with
specificity precludes his assertion of any such claim on
appeal. We thus need not reach the arguments
advanced by Gallo or court-appointed amicus in
support of either his Contracts or Takings Clause
claims as to tenants other than Hopkins.
Nor will we take up Gallo’s request to
resuscitate his pleading by construing it as a facial
takings challenge. The Supreme Court has
“recognized an important distinction between a claim
that the mere enactment of a statute constitutes a
taking and a claim that the particular impact of
government action on a specific piece of property
requires the payment of just compensation.” Keystone
Bituminous Coal Ass’n v. DeBenedictis, 480 U.S. 470,
494 (1987). The former challenge, a facial attack,
presents an “uphill battle” for Gallo. Id. at 495. He
must show that the emergency legislation denied him
19a
“economically viable use of his land.” Hodel v. Va.
Surface Min. & Reclamation Ass’n, 452 U.S. 264, 295–
96 (1981). Although the SAC gestures at a facial
challenge, see A184–85, 192–97, it does not state such
a claim.
As the District highlights, nothing in the
moratoria relieved tenants of their obligation to pay
rent. And, as the District Court held, “[t]he filing ban
only deprived Gallo of economic benefit from those
tenants who refused to pay rent and failed to quit the
premises, such that eviction was necessary.” Gallo,
2023 WL 7552703, at *6. The SAC does not specify
how many of Gallo’s tenants would actually qualify for
eviction under the RHA. And, as the District Court
further held, even for those tenants who breached
their leases, “the law did not stop them from accruing
liability for money damages over the continued
occupation of the units,” such that Gallo could
ostensibly recoup the economic value of that property.
Id.; see also Appellee Br. 49 (noting that “under the
Filing Moratorium, the landlord could pursue eviction
and damages for unpaid rent after the emergency
ended”); id. at 27 (stating that “the District offered
$350 million in funding to compensate landlords for
lost rent through the Stay DC program”). Gallo thus
has not stated a facial takings claim.
IV.
We thus affirm the District Court’s dismissal of
the Second Amended Complaint. Accordingly, we deny
Gallo’s Motion to Reassign Case on Remand as moot.
***
Pursuant to D.C. Circuit Rule 36, this
disposition will not be published. The Clerk is directed
to withhold issuance of the mandate herein until
20a
seven days after resolution of any timely petition for
rehearing or petition for rehearing en banc. See FED.
R. APP. P. 41(b); D.C. CIR. R. 41.
Per Curiam
FOR THE COURT:
Clifton B. Cislak, Clerk
BY: /s/
Daniel J. Reidy
Deputy Clerk
21a
Appendix D: Second Opinion of District Court
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER GALLO,
Plaintiff,
v.
DISTRICT OF COLUMBIA,
Defendant.
Case No. 1:21-cv-03298 (TNM)
MEMORANDUM OPINION
In the early days of the COVID-19 pandemic,
the District of Columbia banned landlords from
evicting their tenants. Alexander Gallo, a landlord,
now sues the District. He claims that its ban violated
his rights under the Contract and Takings Clauses of
the United States Constitution. Although the Court
dismissed his case once, see Gallo v. District of
Columbia, 610F. Supp. 3d 73 (D.D.C. 2022), it granted
his motion for reconsideration so he could replead his
Complaint with greater specificity. Gallo v. District of
Columbia, No. 1:21-cv-03298 (TNM),2023 WL
2301961 (D.D.C. Mar. 1, 2023). Despite that
opportunity, Gallo’s Complaint remains deficient. So
the Court now grants the District’s renewed motion to
dismiss, Mot. to Dismiss(MTD), ECF No. 54, this time
with prejudice.
I.
Gallo owns and manages ten condominium
units in the District. See Second Amend. Compl. (SAC)
22a
¶ 1, ECF No. 50.1 At issue here, though, is a single
unit. Gallo acquired the unit in this case—what he
calls the “Foreclosure Unit”—at a foreclosure sale in
February 2020. Id.¶ 4. When he acquired the unit, it
was occupied by its prior owner, Andre Hopkins. Id. ¶
8.
By buying an inhabited unit at the foreclosure
sale, Gallo created an estate at will with Hopkins as
his tenant. D.C. Code § 42-522.2 This meant that Gallo
could terminate the tenancy “at any time,” id., subject
to a requirement that he provide Hopkins “30 days[’]
notice inwriting,” id. § 42-3203. Gallo served such
notice in March 2020, which, he contends, meant that
Hopkins’s tenancy ended “as of May 5, 2020.” SAC ¶
4.3
1 Because the Court is ruling on a motion to dismiss, it
assumes the truth of Gallo’s well pleaded factual allegations.
Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009) (“[A] court must accept
as true all of the allegations contained in a complaint.”).
2 The core of Gallo’s relevant changes in the SAC go to
this point. He had originally alleged that “a squatter has been
residing [in his condominium] at the District’s invitation for
nearly two years.” Sup. Ct. Compl. ¶ 2, ECF 1-1. And he doubled
down on that claim in his Motion for Reconsideration. Mot. for
Reconsideration at 4, ECF No. 20. According to Gallo’s current
pleadings, he did not “invite” Hopkins to take up residence. Id.
Nor did the District. SAC ¶ 8. Rather, Gallo bought the
Foreclosure Unit while Hopkins was still living there. Id.
3 The Court notes that the timeline of events in this case
is far from clear. Gallo represents that he purchased the
condominium “in February 2020” and that he served the 30-day
notice to quit “in March 2020.” SAC ¶ 4. He claims his service of
the 30-day notice in March meant that Hopkins’s tenancy ended
“as of May 5, 2020.” Id. But all dates in March 2020 are more
23a
That same March, the District imposed an
“eviction prohibition.” COVID-19 Response Emergency
Amendment Act of 2020, 67 D.C. Reg. 3093, 3102–03
(Mar. 17, 2020) (capitalization altered). The
prohibition had two effects: First, it prohibited
evicting tenants “[d]uring a period of time for which
the Mayor has declared a public health emergency.”
Id. And second, if a landlord had filed a complaint
against a delinquent tenant but no hearing had yet
been held, the prohibition effectively continued the
hearing for the rest of the public health emergency. Id.
at3102.4
In May, the District added another wrinkle. It
expanded the eviction prohibition with an “eviction
clarification.” Coronavirus Omnibus Emergency
Amendment Act of 2020, 67 D.C.Reg. 5235, 5243 (May
than 30 days prior to May 5, 2020. What’s more, Gallo alleges
that his service of the notice came before the announcement of
the eviction prohibition. Id. ¶¶ 4–6. But the prohibition was
announced on March 17, see COVID-19 Response Emergency
Amendment Act of 2020, 67 D.C. Reg. 3093, (Mar. 17, 2020), so
the latest the tenancy could have ended was on April 16. None of
this makes much sense. Compounding the confusion is the
District’s representation that Gallo actually acquired the unit in
June 2021. MTD at 1. Nonetheless, the Court is required to take
Gallo’s allegations as true and, ultimately, these details make no
difference to the failure of Gallo’s claims on the merits.
4 That is because D.C. law requires that a hearing in an
ejectment action not occur until 30 days after the defendant is
served with a summons. D.C. Code § 16-1502(a). But the eviction
prohibition excluded the entire period of a public health
emergency from that 30-day period. See 67 D.C. Reg. 3093, 3102.
So the prohibition effectively froze the clock on the 30-day period,
which would begin again only after the eviction prohibition lifted.
24a
13, 2020) (cleaned up). The March rule had allowed
landlords to file actions in ejectment, and simply
postponed any hearing until after the prohibition
expired. 67 D.C. Reg. at 3012. But the May rule
banned the filing of actions in ejectment altogether.
Id. at5243. Landlords now could not even begin a
lawsuit until 60 days after the District’s public health
emergency ended. Id. The practical consequences of
this expansion were minimal: Under both the March
and May rules, no actions in ejectment could proceed
during the public health emergency. The primary
contribution of the filing ban was to prevent landlords
from filing lawsuits that would spring into effect once
the prohibition ended.
But neither the March nor the May rule
extinguished any cause of action or immunized any
party from suit. Rather, the rules simply delayed the
filing and prosecution of actions in ejectment within
the District. Nothing in either act prohibited the filing
of those actions after the public health emergency was
over. Nor did either act immunize tenants for conduct
during the moratoria. And the statute of limitations
for all such actions was tolled during this period, see
District of Columbia v. Towers, 260 A.3d 690, 695
(D.C. 2021), so no ejectment claim was permanently
lost.
While all this was going on, May 5 came and
went. But Hopkins lingered. SAC ¶ 8.Despite knowing
that his lease had ended, id. ¶ 4, he remained in the
Foreclosure Unit, id. ¶¶ 8–10. And he cut off all
25a
contact with Gallo, refusing to respond to even
mutually beneficial communications. Id. ¶ 30. By
Spring 2021, two tenants in Gallo’s other properties
had followed suit. Id. ¶ 33.
Gallo filed this lawsuit in D.C. Superior Court
in November 2021. Sup. Ct. Compl., ECFNo. 1-1. The
District quickly removed the case here, ECF No. 1,
where it has remained since. In January 2022, the
District moved to dismiss Gallo’s Complaint, ECF No.
6, and the Court granted that motion. See Gallo, 610
F. Supp. 3d at 91. Yet the Court later granted a motion
for reconsideration when Gallo identified new facts
that might have cured the defects the Court noted
about his Complaint. See Gallo, 2023 WL 2301961, at
*5. Gallo has therefore filed a new amended
Complaint, see SAC, and the District has again moved
to dismiss, ECF No. 54.
II.
A.
“To survive a motion to dismiss, a complaint
must contain sufficient factual matter, accepted as
true, to state a claim to relief that is plausible on its
face.” Ashcroft v. Iqbal, 556U.S. 662, 678 (2009). “A
claim has facial plausibility when the plaintiff pleads
factual content that allows the court to draw the
reasonable inference that the defendant is liable for
the misconduct alleged.” Id. The Court considers “only
the facts alleged in the complaint, any documents
either attached to or incorporated in the complaint[,]
26a
and matters of which [it] maytake judicial notice.”
Hurd v. District of Columbia, 864 F.3d 671, 678 (D.C.
Cir. 2017) (citation omitted).
Gallo proceeds without counsel. This triggers
special solicitude for him. “A document filed pro se is
to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus,551 U.S. 89, 94 (2007)
(cleaned up). More, courts assess a pro se complaint
“‘in light of’ all filings, including filings responsive to
a motion to dismiss.” Brown v. Whole Foods Mkt.
Grp.,Inc., 789 F.3d 146, 152 (D.C. Cir. 2015). But pro
se plaintiffs must still adequately plead their
complaint consistent with Iqbal. See Atherton v. D.C.
Off. of the Mayor, 567 F.3d 672, 681–82(D.C. Cir.
2009).
B.
The Constitution recognizes two main
categories of claims under the Takings Clause. First,
if “the government physically acquires private
property for public use.” Cedar Point Nursery v.
Hassid, 141 S. Ct. 2063, 2071 (2021). The Government
can “physically acquire[]private property” in various
ways. For instance, “when it uses its power of eminent
domain to formally condemn property,” when it
“physically takes possession of property without
acquiring title to it,” and “when it occupies property”
without possessing the property or the title to it. Id. A
taking also occurs when the Government “requires [a]
27a
landowner to submit to the physical occupation of his
land” by a third party, without itself occupying the
land. Yee v. City of Escondido, 503 U.S. 519, 527
(1992) (cleaned up); see also Cedar Point Nursery, 141
S. Ct. at2072 (recharacterizing this as a physical
acquisition). In each case, the Government has taken
the property, and a plaintiff is entitled to “just
compensation.” U.S. Const. amend. V.
But the Government may also effect a taking
without physically seizing a property. When the
Government “imposes regulations that restrict an
owner’s ability to use his own property,” it may be
liable for imposing a so-called regulatory taking.
Cedar Point Nursery, 141 S. Ct. at 2071–72. If a
regulation deprives a landowner of “all economically
beneficial or productive use of [his] land,” it is per se a
taking, categorically warranting compensation by the
Government. Lucas v. S.C. Coastal Council, 505 U.S.
1003, 1015–16 (1992).
More often, though, courts must engage in an
“essentially ad hoc, factual inquir[y]” under Penn
Central Transportation Co. v. City of New York, 438
U.S. 104 (1978). Id. at 124. Under that test, Courts
determine whether the Government is seeking to
“forc[e] some people alone to bear public burdens
which, in all fairness and justice, should be borne by
the public as a whole.” Lingle v. Chevron U.S.A. Inc.,
544 U.S. 528, 537 (2005). That inquiry focuses on the
“economic impact of the regulation on the claimant
and, particularly, the extent to which the regulation
28a
has interfered with distinct investment-backed
expectations,” along with “the character of the
governmental action.” Penn Central, 438 U.S. at 124.
Now, the Contract Clause. The Contract Clause
provides that “No State shall . . . pass any . . . Law
impairing the Obligation of Contracts.” U.S. Const.
art. I, § 10. Courts apply a two-step test to determine
whether a given law violates the Contract Clause.
First, they ask whether the law “operate[s] as a
substantial impairment of a contractual relationship.”
Sveen v. Melin, 138 S. Ct. 1815, 1821–22 (2018). To do
so, courts look to “the extent to which the law
undermines the contractual bargain, interferes with a
party’s reasonable expectations, and prevents the
party from safeguarding or reinstating his rights.” Id.
at 1822. If the law substantially impairs the
contractual relationship, courts then ask whether it
“is drawn in an appropriate and reasonable way to
advance a significant and legitimate public purpose.”
Id.(internal quotation marks omitted). When a law
violates the Contract Clause, it is simply void. Carter
v. Greenhow, 114 U.S. 317, 322–23 (1885). Individuals
have no right to affirmative relief under the Contract
Clause; rather, they can simply sue to enforce the
contract itself, disregarding the unconstitutional law.
Id. at 322.
Finally, Gallo brings a claim under the
District’s writ of waste statute. That statute, whose
language is nearly identical to the 1278 Statute of
Gloucester, Nelbach v. Nelbach, 291A.3d 1129, 1134
29a
(D.C. 2023), provides that A man from henceforth
shall have a writ of waste in the chancery against him
that holdeth by law, or otherwise for term of life, or for
term of years; and he which shall be attainted of
waste, shall lease the thing that he hath wasted, and
moreover shall recompense thrice so much as the
waste shall be taxed at. D.C. Code § 42-1601. In other
words, a landlord may sue a tenant who wastes, or
permanently damages, Nelbach, 291 A.3d at 1137, his
property. And if he prevails, the tenant shall “lease”—
in modern language, “lose,” id. at 1136—the property
and pay treble damages.
Having set the stage, the Court now reviews the
merits of Gallo’s claims.
III.
First, the Court can quickly dispense with
Gallo’s Contract Clause claim. Gallo brings all his
claims under 42 U.S.C. § 1983. SAC at 1 (“Second
Amended Complaint for Damages and Declaratory
Relief (42 U.S.C. § 1983)” (cleaned up)). But the
Supreme Court has long held that the Contract Clause
is not enforceable through § 1983. Greenhow, 114 U.S.
at 322. Instead, the only right secured by the Contract
Clause is the right, in a suit to enforce a contract that
the Government purports to prohibit, to set aside the
state law that would invalidate the contract. Id. So
this claim may be readily dismissed.
Second, the Court can likewise dispense with
Gallo’s writ of waste claim. The District’s writ of waste
statute permits suits only “against him that holdeth
30a
by law, or otherwise for term oflife, or for term of
years.” D.C. Code § 42-1601. In other words, the cause
of action runs only against the landlord’s tenant. But
Gallo sues the District, not Hopkins. Because the
cause of action cannot run against the District, Gallo
lacks a viable claim. See Nelbach, 291 A.3d at
1130(holding that the landlord “may sue the tenant”
under § 42-1601 (emphasis added)). This claim also
must be dismissed.
Gallo’s Takings Clause claim demands more
searching inquiry. But it, too, fails. The District did
not physically acquire Gallo’s property, so the filing
ban cannot be considered a taking on that ground. Nor
did the District’s regulation so exceed the bounds of
permissible government action to be considered a
regulatory taking.
Start with physical appropriation. The District
did not take title to or possession of Gallo’s property.
Instead, it required him to continue allowing
delinquent tenants to live there without fear of
eviction. So the question is whether the District’s
temporary suspension of eviction as a landlord
remedy counts as a physical occupation for Takings
Clause purposes. The Supreme Court has already
addressed this question in a decision that is closely onpoint.
In Yee, the Court considered a California law
that “limit[ed] the bases upon which a park owner
may terminate a mobile home owner’s tenancy.” Yee,
503 U.S. at 524. Under that law, “the park owner
31a
cannot evict a mobile home owner.” Id. at 526–27. The
Yees, who operated a mobile home park, sued the City
of Escondido, arguing that this constituted a taking of
their property rights. Id. at 526. The Supreme Court
disagreed.
The Court held that “[t]he government effects a
physical taking only where it requires the landowner
to submit to the physical occupation of his land.” Yee,
503 U.S. at 527. But the mobile home eviction bar did
not constitute a “compelled physical invasion” because
the Yees had “voluntarily rented their land to mobile
home owners” in the first place. Id. In other words, the
Yees had consented to the initial physical occupation
of their land when they leased the property to the
tenants. At most, the government policy prolonged
that occupation.
But a mere prolonged occupation was not a
taking either. Indeed, as the Court noted, thelaw did
not “compel[] petitioners, once they have rented their
property to tenants, to continue doing so.” Yee, 503
U.S. at 527–28. All it did, the Court found, was defer
any eviction by “6 to12 months.” Id. at 528. Crucially,
the government did not compel the Yees to “refrain in
perpetuity from terminating a tenancy.” Id. So long as
an eviction might be available down the line—even if
months or more away—no physical occupation had
occurred. See id. In sum, the Court held that the
“tenants were invited by petitioners, not forced upon
them by the government,” so the “right to exclude” had
32a
not “been taken from petitioners on the mere face of
the Escondido ordinance.” Id.5
The filing moratorium here resembles the law
in Yee. Just as there, it regulates Gallo’s conduct
toward tenants that he (or his predecessor-in-interest)
voluntarily leased to. And, just asin Yee, the District’s
policy does not require Gallo to keep a tenant forever.
Instead, it simply delays the filing of any action in
ejectment until a set time—60 days after the public
health crisis ends. 67 D.C. Reg. at 5243. The policy
here is legally indistinguishable from the one in Yee,
so Yee commands that Gallo’s physical-occupation
taking claim fails.
Gallo argues that his case is unlike Yee because
the tenancy in Yee was as-yet unterminated, whereas
the tenancy here has ended. See Opp’n to MTD at 6,
5 It for this reason that Cedar Point Nursery also does not
help Gallo. That case dealt with whether depriving a landowner
of the right to exclude constituted a taking. But the Court in Yee
held that eviction moratoria like the one here do not deprive
landowners of the right to exclude at all. Yee, 503 U.S. at 528.
Admittedly, there is tension between Cedar Point Nursery and
Yee. Indeed, it is hard to square Yee’s holding with Cedar Point
Nursery’s more recent treatment of government takings.
But the Supreme Court in Cedar Point Nursery cited Yee
with approval. Cedar Point Nursery, 141 S. Ct. at 2072. And it
has been adamant that “[i]f a precedent of [the Supreme Court]
has direct application in a case, yet appears to rest on reasons
rejected in some other line of decisions,” lower courts “should
follow the case which directly controls, leaving to [the Supreme
Court] the prerogative of overruling its own decisions.”
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477,
484 (1989); see also Gallo, 610 F. Supp. 3d at 88 n.6.
33a
ECF No. 56. But that fact did not play into the Court’s
reasoning. The Court in Yee paid no mind to the
present status of the tenancy. What mattered was that
the tenancy was initially voluntary. See Yee, 503U.S.
at 528 (“Petitioners’ tenants were invited by
petitioners, not forced upon them by the
government.”). And by all accounts, this tenancy was,
too. Gallo alleges that he took title to the Foreclosure
Unit voluntarily, converting the previous owner to his
tenant at will. SAC ¶ 4. Gallo only later terminated
that tenancy, making Hopkins a trespasser. Id. More,
the reason that the tenancy had not been terminated
in Yee was because the challenged law forbade it. Yee,
503U.S. at 524. So it would be circular to distinguish
Yee on that ground.
Turning to regulatory takings, Gallo’s claim
again fails to cut the mustard. First, the law here is
not a per se regulatory taking under Lucas. A law is
only a per se taking under Lucas when it denies the
owner “all economically beneficial or productive use”
of his property. Lucas,505 U.S. at 1015. That standard
is not met here. The filing ban only deprived Gallo of
economic benefit from those tenants who refused to
pay rent and failed to quit the premises, such that
eviction was necessary. And even among those
individuals, the law did not stop them from accruing
liability for money damages over the continued
occupation of the units. So almost all economic value
of the property remains undiminished.
34a
And Yee confirms this. It held that “state and
local laws” that “regulat[e] the relationship between
landlord and tenant” are subject to the “essentially ad
hoc, factual inquir[y]” under PennCentral. Yee, 503
U.S. at 528–29. The Court now turns to that standard.
The Penn Central analysis focuses on the
regulation’s economic effect on Plaintiff, the degree of
interference with his reasonable investment-backed
expectations, and the character of the governmental
action. See Penn Central, 438 U.S. at 124. The Court
takes each in turn.
Start with the economic effect on Gallo. He
pleads that he has lost $36,400 as a result ofthe filing
moratorium. SAC at 16. He also identifies other
downstream costs, like legal fees and mental anguish.
Id. at 18–20. But those are not economic impacts of
the kind relevant to Penn Central. See Penn Central,
423 U.S. at 124. Thirty-six thousand dollars is
undoubtedly a great hardship for Gallo. But the law
requires more. As the Court previously noted, see
Gallo, 610 F.Supp. 3d at 90, he must put forward
“striking evidence of economic effects” to sustain a
Penn Central claim. See Dist. Intown Props. Ltd.
P’ship v. District of Columbia, 198 F.3d 874, 883(D.C.
Cir. 1999). And this does not rise to that level. Gallo,
610 F. Supp. 3d at 90. But even if the economic
impacts were harsh enough, each of the other Penn
Central factors weighs against Gallo.
Consider the impact on his reasonable
investment-backed expectations. Landlord-tenant
35a
relations are pervasively regulated. Loretto v.
Teleprompter Manhattan CATV Corp., 458 U.S.419,
440 (1982); see also Yee, 503 U.S. at 529. Gallo is a
sophisticated individual who owned several rental
properties prior to acquiring this one. SAC ¶¶ 1–4. So
he was surely on notice of the degree of government
involvement in landlord-tenant relations.
More, the specific kind of regulation at issue
had occurred before. See Yee, 503 U.S. at524. It had
even occurred here in Washington. See Block v. Hirsh,
256 U.S. 135, 153–54(1921). And these regulations
had been upheld by the Supreme Court repeatedly.
See Yee, 503U.S. at 538–39; Block, 256 U.S. at 156. So
Gallo had no reasonable expectation that they could
not recur. But even had those prior regulations not
existed, “[b]usinesses that operate in an industry with
a history of regulation,” such as rental properties,
“have no reasonable expectation that regulation will
not be strengthened to achieve established legislative
ends.” Dist. Intown,198 F.3d at 884.
Last, consider the character of the government
action. This factor focuses on “whether the
government has legitimized a physical occupation of
the property, and whether the regulation has a
legitimate public purpose.” Dist. Intown, 198 F.3d at
879 (cleaned up). The regulation didnot “legitimize[] a
physical occupation of the property.” Id. It did not
purport to render trespass by erstwhile tenants
lawful. Nor did it bar the termination of tenancies.
Rather, it simply deferred a specific remedy (eviction)
36a
until after the public health emergency. And this had
“a legitimate public purpose.” Id. It sought to combat
the spread of the COVID-19 pandemic, which the
Supreme Court has held “is unquestionably a
compelling interest.” Roman Cath. Diocese of
Brooklyn v. Cuomo, 141 S. Ct. 63, 67 (2020); see also
Roman Cath. Archbishop of Wash. v. Bowser, 531 F.
Supp. 3d 22, 37 (D.D.C. 2021). So, in sum, Gallo’s Penn
Central argument fails on all three elements. Thus,
the District’s filing ban was not a regulatory taking.
Gallo’s substantive claims therefore all fail. His
remaining claims are all derivative of those
substantive claims, requesting various forms of
damages or costs. See SAC at 18–21. But because
Gallo has failed to state a claim, his requests for
specific remedies are of no moment. So the Court will
dismiss them too.6
IV.
To be sure, Gallo was unlucky in the timing of
his real-estate investment. He bought what he
thought would be a profitable residential unit, and he
ended up with a freeloader who avoided eviction
because of the District’s COVID-related eviction
prohibition. But unfortunately for Gallo, binding
6 Gallo has also moved for leave to file a Sur-reply to the
District’s motion to dismiss. ECF No. 59. The Court will grant
that motion but notes that it has considered the arguments
raised in Gallo’s proposed Sur-reply and none changes the
outcome of this motion.
37a
caselaw simply does not provide a remedy against the
city for landlords in his situation.
At this point, Gallo has had his day in court
several times over. He has litigated these issues in the
local courts and in this Court repeatedly. By now, it is
clear that “the allegation of other facts” cannot
“possibly cure the deficienc[ies]” in his Complaint. See
Abbas v. Foreign Pol’y Grp., LLC, 783 F.3d 1328, 1340
(D.C. Cir. 2015). So the Court must not only dismiss
his Complaint, but also must do so with prejudice.
Because the Court will grant the motion to dismiss, it
will deny Gallo’s motion to expedite, ECF No. 60, as
moot. A separate order will issue today.
Dated: November 14, 2023
TREVOR N. McFADDEN, U.S.D.J.
38a
Appendix E: Order Granting Reconsideration
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER GALLO,
Plaintiff,
v.
DISTRICT OF COLUMBIA,
Defendant.
Case No. 1:21-cv-03298 (TNM)
MEMORANDUM ORDER
Alexander Gallo owns and rents condos in the
District of Columbia. His business took a hit during
the pandemic when the District passed laws that
curbed his right to evict tenants or sue for rent. So he
sued, alleging that these laws violated his
constitutional rights. The Court disagreed and
dismissed Gallo’s Complaint.
Now, Gallo asks the Court to reconsider that
decision. He says the Court got some facts wrong and
challenges the Court’s Contract Clause and takings
analyses. Some of Gallo’s factual points are well
taken; had he made them in his Complaint, the result
may have been different. Thus, to prevent manifest
injustice and afford Gallo solicitude as a pro se
litigant, the Court will reopen this case and direct him
to amend his Complaint within 30 days.
I.
Starting in 2020, the District passed a flurry of
temporary COVID laws. One of these barred landlords
39a
from suing to evict tenants. See Coronavirus Omnibus
Emergency Amendment Act of 2020, D.C. Act 23-317,
§ 10 (May 13, 2020). Another barred suits to collect
debts. See COVID-19 Response Supplemental
Emergency Amendment Act of 2020, D.C. Act 23-286,§
207 (Apr. 10, 2020). Plus, it launched STAY DC, a
program that allowed landlords and tenants to apply
together for rental assistance. See Press Release,
Exec. Off. of the Mayor, Mayor Bowser Announces
$350 Million Rent and Utility Assistance Program for
DC Residents, Gov’t of the Dist. of Columbia (April 12,
2021), https://bit.ly/3gLibqH. And it enacted the
Coronavirus Support Temporary Amendment Act of
2021 (PPP). D.C. Act 24-62, § 402 (May 3,2021)
(codified at D.C. Code § 42-3192.01). The PPP required
landlords to offer payment plans to certain tenants,
and it protected those tenants from lawsuits if they
abided by their plans’ terms. D.C. Code § 423192.01(g).
In 2021, the District began sunsetting these
laws. D.C. Act 24-125 (Jul. 24, 2021)(codified at D.C.
Code § 42-3505.01 et seq.) (“Phasing Act”). Thus,
landlords who had used the District’s rentalassistance program could begin filing eviction
lawsuits in October of that year. Id.
Because of these laws, Gallo could not evict a
squatter from one of his condos. Compl.¶ 2, ECF No.
1-1. So he sued the District, alleging that it had
violated the Constitution’s Contract Clause, Petition
Clause, and Takings Clause, as well as his right of
access to courts. Id.at 2. The District then moved to
dismiss. See Def.’s Mot. to Dismiss, ECF No. 6.
The Court agreed with the District and
dismissed Gallo’s claims without prejudice. Order,
40a
ECF No. 19. It found that Gallo lacked standing for
his claim that the PPP violated the Contract Clause.
Mem. Op. at 6, ECF No. 18. And the Court found that
neither the Filing Moratorium nor the Debt Collection
Moratorium violated Gallo’s constitutional rights. Id.
at 10,15, 20, 22. Now, Gallo asks the Court to
reconsider. See Mot. for Recon. (MFR), ECF No. 22.
II.
On a motion for reconsideration under Rule
59(e), the movant must point to either “an
“intervening change of controlling law,” “new
evidence,” “a clear error,” or the need to “prevent
manifest injustice.” Leidos, Inc. v. Hellenic Republic,
881 F.3d 213, 217 (D.C. Cir. 2018) (cleaned up). These
motions are disfavored and must be denied if they
merely “raise arguments or present evidence that
could have been raised prior to the entry of judgment.”
Id. (cleaned up).
Gallo raises many points for reconsideration.
Most get him nowhere. But a few factual points are
compelling: Gallo explains that the squatter did not
apply for assistance and then disappeared. And he
also suggests that he never invited the squatter in the
first place (although his first Complaint seems to
undercut that).
Because of the solicitude courts afford pro se
litigants and the need to prevent manifest injustice,
the Court reopens this case. See Moini v. LeBlanc, 456
F. Supp. 3d 34, 40 (D.D.C.2020) (declining to dismiss
inartfully pled pro se complaint). Gallo shall thus have
30 days to file an Amended Complaint that addresses
the factual deficiencies in his first.
III.
These key fact issues rear their head in a few places.
41a
A.
Gallo claims that the Court erred in
characterizing some of the District’s programs as
relief programs for landlords. See, e.g., Mem. Op. at 3
(calling STAY DC a “program[] to assist property
owners facing financial strain from unpaid rent”); id.
at 6 (“The PPP is a remedy for the District’s laws
restricting evictions.”). Instead, he protests, those
programs were meant to assist tenants. MFR at 2, 4.
Relatedly, Gallo says that the Court wrongly assumed
that he “could ‘apply’ for relief and receive it.” MFR at
1.
Start with STAY DC. Gallo quibbles with the
Court’s characterization that the program helped
“certain tenants and housing providers.” MFR at 2
(quoting Mem. Op. at 3). Gallo insists that this is not
so because the program requires that both a landlord
and his tenant apply. Granted, that rule may mean
that many landlords received no help. But it does not
mean that the program helped no landlords. By
assisting tenants who were otherwise unable to pay,
the program helped landlords who might otherwise
have received no money.
That said, the fact issues raised in Gallo’s
motion bear on whether relief was available to him.
Gallo argues that relief was unavailable to him under
STAY DC because “[i]f a tenant does not act there is
no application.” MFR at 2; see also Reply at 1, ECF No.
25. But Gallo never clearly said in his Complaint that
the “squatter” in his house had refused to apply. So
the Court could not assume that relief was
unavailable to him.
To be sure, Gallo said that “[n]o compensation
was or is provided or promised by the District.” Compl.
42a
¶ 4. And he also called the District’s remedies for
landlords non-existent. See Motion to Strike at 1, 3,
ECF No. 10. But the Court need not take these
conclusory allegations as true. See Ashcroft v. Iqbal,
556 U.S. 662, 681 (2009).
Yet now, Gallo clarifies that “the occupant did
not pay, did not ‘apply’ for assistance,[and]
disappeared.” MFR at 5. This may change things. And
Gallo may plead these facts in his Amended
Complaint.
B.
Those fact issues may alter the Court’s takings
analysis.
1. Yee. Start with Gallo’s claim that the Court
improperly relied on Yee v. City of Escondido, 503 U.S.
519 (1992). He argues that Yee does not control here
because the law at issue there allowed eviction for
nonpayment of rent. See MFR at 7. True, but that was
not central to the Court’s holding. Instead, Yee rested
in large part on the voluntariness of the owner/renter
relationship. As the Supreme Court noted,
“Petitioners voluntarily rented their land to mobile
home owners.” 503 U.S. at 527. And it considered that
relationship voluntary even though there was at least
one restriction on evictions. Id. at 528 (“[A] park
owner who wishes to change the use of his land may
evict his tenants, albeit with 6 or 12 months notice.”).
Had the District forced Gallo to allow the squatter
access to his apartment in the first place, Gallo’s
argument would fare better. But on the face of Gallo’s
Complaint, it appeared that he initially “invited” the
squatter onto his property.
Yet Gallo now says that the Court misread his
Complaint when finding that he had “invited” the
43a
squatter. See MFR at 4. As Gallo notes, he plead that
“a squatter has been residing at the District’s
invitation for nearly two years.” Compl. ¶ 2 (emphasis
added). So the Court was wrong to write that “Gallo
invited the nonpaying tenant onto his property.” Mem.
Op. at 16.
The Court disagrees. Gallo ignores the rest of
his Complaint. There, he adds that this squatter “was
foreclosed nearly two years ago for not paying his
bills.” Compl. ¶ 2. Based on that, the Court read
Gallo’s allegation that the District “invited” the
squatter as follows: bypassing laws restricting
evictions, the District had “invited” the squatter to
stay. And that was a fair reading. The squatter was at
one point “paying his bills” and thus presumably
invited thereby Gallo. If that is wrong, as Gallo now
suggests, then he may clarify those facts in his
Amended Complaint.
Gallo also argues that he invited “a leaseholdnot an individual who can be extracted from his
leasehold (eg, his payment) and still be considered
‘invited.’” MFR at 7; see also Reply at 2–5 (arguing
similar); Notice of Suppl. Auth., ECF No. 26 (“Court is
not free to simply adopt language from other federal
district courts and conjure tenancies.”); Notice of
Suppl. Auth., ECF No. 30 (discussing reversionary
interests). In other words, he now asks “the Court to
reassess its ‘invitation’ analysis under Yee as one
potentially applicable to some leaseholds- not
individuals.” Reply at 3.
His novel argument goes like this: A tenant who
stops paying rent is no longer a tenant. Id. And
because the former tenant has no estate, that person
“is no different than a member of the public.” Id. So
44a
the Government “commits a physical taking when it
grants possession to [that]person.” Id. (emphasis in
original).
The Court disagrees. That person is different
“than a member of the public” because that person
was invited. Id. at 3. That is why the Court found that
Yee controls. Mem. Op. at 17(“The District’s laws do
not force Gallo to give anyone access to his property
that he did not invite. So he does not suffer the same
infringement on his right to exclude as the growers in
Cedar Point.”). Yee never makes the distinction that
Gallo presses and this Court will not either.
Gallo also says that the “8th Circuit [c]orrectly
[d]istinguished Yee.” Reply at 6. He claims that the
Eighth Circuit “simply recognized that the
government forced occupancy ‘regardless of whether
tenants provided compensation’ and where leases
were ‘materially violated.’” Id. (quoting Heights
Apartments, LLC v. Walz, 30 F.4th 720, 733 (8th Cir.
2022)). In support, he again tries to distinguish Yee.
His case is different, he urges, because it involves
nonpayment of rent. Reply at 6. And to prove that, he
quotes Yee out of context, noting that it “highlighted
the unambiguous distinction between a . . . lessee and
an interloper with a government license.” Id. (quoting
Yee, 503 U.S. at 532 (cleaned up)).
But the sentence before that notes that “it is the
invitation, not the rent, that makes the difference.”
Yee, 503 U.S. at 532 (cleaned up). And because Gallo’s
Complaint suggests that he invited the squatter, the
squatter appeared more like a lessee than an
interloper. So this line of argument failed on factual
grounds too.
45a
2. Regulatory takings. In closing, Gallo briefly
repeats that the District’s programs were regulatory
takings as well. MFR at 9–10. His chief complaint
here is that the Court’s “regulatory takings analysis
centers on an assumption that [he] was ‘not without
recourse.’” Id.at 9 (quoting Mem. Op. at 20). But as the
Court explained earlier, that assumption was fair
based on Gallo’s Complaint and the District’s laws.
If Gallo meant to raise an as applied challenge,
then he needed to plead specific facts with more
clarity. In Yee, the petitioners claimed that “the
statutory procedure for changing the use of a mobile
home park is in practice kind of a gauntlet,” such that
they were not actually “free to change the use of their
land.” 503 U.S. at 528 (cleaned up). But because they
never “claim[ed] to have run that gauntlet,” the Court
examined the statute facially instead. Id. Similarly,
Gallo never clearly claimed that he tried to use the
District’s programs. Rather, he just said that “[n]o
compensation was or is provided by the District for the
occupancy imposed.” Compl. ¶ 4. Again, Gallo’s terse
Complaint was not enough.
C.
Gallo’s new allegations may also affect the
Court’s Contract Clause analysis.
Here, he asks if the “Court h[eld] that ‘seeking’
rent equates to receiving it?” MFR at 5.No, the Court
did not. When dismissing Gallo’s Complaint, the
Court noted that “the Filing Moratorium is not
permanent and does not bar landlords from seeking
past-due rent after its expiration.” Mem. Op. at 15.
That is true.
But now, Gallo alleges that “the occupant did
not pay, did not ‘apply’ for assistance,[and]
46a
disappeared.” MFR at 5. And he says that his injury
is permanent because the debt is uncollectable. Id. at
5–6. This line of attack has a familiar defect. Gallo
never pled that full setof facts in his Complaint. Had
he, the result might have been different. Instead, he
said that a “squatter occupying the unit was foreclosed
nearly two years ago for not paying his bills for years
prior.” Compl. ¶ 2. And he noted that the District had
not promised to pay him any money. Id. That was not
enough to show that his debt was uncollectable.1 So
the factual ambiguities plagued Gallo here as well.
D.
Gallo also presses four more arguments that
the Court found uncompelling.
1. The Court should have taken judicial notice
of articles that said landlords had no remedy available
to them. MFR at 2. Not so: The Court need not defer
to the media’s legal conclusions. Cf. Knight First
Amend. Inst. v. CIA, 424 F. Supp. 3d 36, 44 (D.D.C.
2020), aff’d,11 F.4th 810 (D.C. Cir. 2021) (“[I]f people
believed everything written in newspapers, there
would be no need for official confirmation through this
FOIA suit.”). Nor must it defer to other landlords’
opinions. Nor is the Court bound by other cities’
descriptions of their programs. MFR at 3 (“Some
jurisdictions recognized that- precisely as I make clear
here- tenant assistance programs do not assist
landlords.”) (emphasis in original).
The Court declines Gallo’s invitation to “clarify its
interpretation of why certain cases may not ‘control.’” MFR at 6.
The Court already explained its view of why binding precedent
compelled its decision in its previous Memorandum Opinion
based on the facts before it.
1
47a
2. The Court improperly construed Gallo’s
estoppel argument. MFR at 3. Gallo’s initial estoppel
argument was unclear. Gallo appeared to claim that
the District had contradicted itself by arguing in
Superior Court that Gallo could access the courts by
filing a takings claim, then moving to dismiss his
takings claim once he did so. Pl.’s Opp’n at 4–5, ECF
No. 8. Now, he claims that his argument was really
that the District contradicted itself when arguing in
this litigation that Gallo could have applied for relief.
That is inconsistent, he insists, with the
Government’s past admission that he could not, in
fact, apply for relief. MFR at 3.This argument fails.
True, the District admitted in Superior Court that
Gallo could not apply for relief without his tenant’s
cooperation. And it acknowledged that Gallo’s
applying for relief “does not sound entirely practical .
. . in his circumstances.” MFR at 3. Yet Gallo points to
nothing in the District’s motion to dismiss that
directly contradicts these admissions. Thus, because
he points to no contradiction, his estoppel argument
fails. See New Hampshire v. Maine,532 U.S. 742, 749
(2001).
3. The Court was wrong that the filing ban had
an end date. MFR at 5. True, the filing ban was
extended. Id. But it eventually ended. See Phasing
Act; D.C. Code § 42-3505.01(b).So it had an end date.
IV.
The Court remains skeptical that Gallo’s case
can succeed. To stand a chance, he should include all
relevant facts in his Amended Complaint. For
instance, if he could not have applied for any of the
District’s programs, he should plead facts that show
why. If the Court must again dismiss Gallo’s
48a
Complaint, it may do so with prejudice. See Lawyers’
Comm. for 9/11 Inquiry, Inc. v. Wray, 424 F. Supp. 3d
26, 36 (D.D.C. 2020), aff’d, 848 F. App’x 428 (D.C. Cir.
2021)(“The Court will not give Plaintiffs a third bite
at the apple.”).
For these reasons, it is hereby
ORDERED
that
Plaintiff’s
Motion
Reconsideration is GRANTED; it is further
for
ORDERED that this case shall be reopened; and it is
further
ORDERED Plaintiff must file an Amended
Complaint within 30 days from the entry of
this Memorandum Order;
SO ORDERED.
Dated: March 1, 2023
TREVOR N. McFADDEN, U.S.D.J.
49a
Appendix F: First Opinion of District Court
UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF COLUMBIA
ALEXANDER GALLO,
Plaintiff,
v.
DISTRICT OF COLUMBIA,
Defendant.
Case No. 1:21-cv-03298 (TNM)
MEMORANDUM OPINION
A century ago, Congress limited D.C. landlords’
rights to evict tenants due to the exigencies of World
War I. Block v. Hirsh, 256 U.S. 135 (1921). The
Supreme Court upheld those restrictions, noting that
temporary restrictions on property rights during
times of emergency “may justify a law that could not
be upheld as a permanent change.” Id. at 157.
Today, Alexander Gallo raises claims much like
those advanced by the landlord in Hirsh. He sues the
District of Columbia alleging that the District’s
emergency tenancy laws enacted during the COVID19 pandemic violated several constitutional
provisions. The District temporarily banned landlords
from filing eviction and debt collection actions. Gallo
claims a tenant has occupied one of his properties for
two years without paying rent and that he has been
unable to evict the tenant because of the District’s
laws. The District moves to dismiss. Because Gallo
50a
lacks standing for one claim and fails to state a claim
as to others, the Court will grant the District’s motion.
I.
Gallo owns several condominium units in the
District. Compl. ¶ 2, ECF No. 1-1. He alleges a tenant
has been living in one of these units for nearly two
years without paying rent. See id. Gallo wants to evict
the tenant but contends he cannot because of the
District’s COVID-19 tenancy laws that prohibited
filing for evictions during the pandemic. Before these
measures, Gallo could have started an eviction action
in D.C. Superior Court under D.C. Code § 161501,subject to the conditions set forth in D.C. Code §
42-3505.01. See Pernell v. Southall Realty,416 U.S.
363, 365 (1974); Suggs v. Lakritz Alder Mgmt., LLC,
933 A.2d 795, 797–98 (D.C.2007).
The District’s rules about evictions temporarily
changed with the onset of the COVID-19 pandemic. In
March 2020, Mayor Muriel Bowser declared a public
health emergency. See Gov’t of the Dist. of Columbia,
Declaration of Public Health Emergency: Coronavirus
(COVID-19) (Mar. 11, 2020), https://bit.ly/337cO2c.
Mayor Bowser extended her order until July 2021. 1
Gov’t of the Dist. of Columbia, End of Public Health
Emergency and Extension of Public Emergency (July
24, 2021), https://bit.ly/3zZM8fL.
1 In response to rising hospitalizations, in January 2022
the Mayor issued a limited public health emergency. See Gov’t of
the Dist. of Columbia, Declaration of Limited Public Health
Emergency Related to Healthcare Capacity (Jan. 11, 2022),
https://bit.ly/3GxfMf0. The Mayor extended the emergency until
April 16, 2022. See Gov’t of the Dist. of Columbia, Extension of
Public Emergency for COVID-19 (Mar. 17, 2022),
https://bit.ly/3wVxtkL.
51a
Mayor Bowser’s declaration of an emergency
coincided with the D.C. Council enacting several
restrictions on evictions. Days after the Mayor’s first
declaration, the D.C. Council enacted a moratorium
on evictions. See COVID-19 Response Emergency
Amendment Act of 2020, D.C. Act 23-247, § 308 (Mar.
17, 2020). A few months later, the Council expanded
the moratorium. See Coronavirus Omnibus
Emergency Amendment Act of 2020, D.C. Act 23-317,§
10 (May 13, 2020). Section 10 of this new act amended
D.C. Code § 16-1501 to prohibit the filing of “a
complaint seeking relief” during a declared public
health emergency “and for 60 days thereafter.” See id.
(the Filing Moratorium). Days later, the Council
replaced these prior measures with a consolidated
version that reenacted, verbatim, the prior
prohibitions on filing a complaint for an eviction. See
Coronavirus Support Emergency Amendment Act of
2020, D.C. Act 23-326, §§ 404, 1201 (May 27, 2020).
Around the same time, the Council passed
emergency legislation that prohibited a creditor or
debt collector from filing or threatening to file a
lawsuit for the collection of a debt during the Public
Health Emergency and for 60 days after. See COVID19 Response Supplemental Emergency Amendment
Act of 2020, D.C. Act 23-286, § 207 (Apr. 10, 2020).The
Council later passed temporary legislation enacting
this prohibition into law beyond the period of
emergency
legislation
(the
Debt
Collection
Moratorium). See Coronavirus Support Temporary
Amendment Act of 2021, D.C. Act 24-62, § 303 (May
3, 2021); Protecting Consumers from Unjust Debt
Collection Practices Temporary Amendment Act of
52a
2021, D.C. Act 24-165, § 2 (Sept. 1, 2021) (codified as
amended at D.C. Code § 28-3814(bb)(1)).
Together with these restrictions on evictions
and debt collection, the District created programs to
assist property owners facing financial strain from
unpaid rent. In April 2021,Mayor Bowser launched
the Stronger Together by Assisting You (STAY DC)
program. See Press Release, Exec. Off. of the Mayor,
Mayor Bowser Announces $350 Million Rent and
Utility Assistance Program for DC Residents, Gov’t of
the
Dist.
of
Columbia
(April
12,
2021),https://bit.ly/3gLibqH. This program allowed
certain tenants and housing providers to apply for
assistance to cover unpaid rental and utility payments
that had accrued during the pandemic. See id.
A month later, the Council enacted the
Coronavirus Support Temporary Amendment Act of
2021 (the Payment Plan Program, or PPP). D.C. Act
24-62, § 402 (May 3, 2021) (codified at D.C. Code § 423192.01). Among other things, this Act requires that
during the Public Health Emergency and for one year
afterwards, housing providers must offer rent
payment plans to tenants who notify providers of their
inability to pay all or part of their rent as a result of
the Emergency. If a tenant “does not default on the
terms of the payment plan,” a provider is “prohibited
from filing any collection lawsuit or eviction for nonpayment of rent.” D.C. Code§ 42-3192.01(g).
When it became clear the Public Health
Emergency would expire in July 2021, the Council
passed the Public Emergency Extension and Eviction
and Utility Moratorium Phasing Emergency
Amendment Act of 2021 (the Phasing Act). D.C. Act
24-125 (Jul. 24, 2021)(codified at D.C. Code § 4253a
3505.01 et seq.). This Act permitted property owners
to resume filing eviction cases for nonpayment of rent
in October 2021, provided these owners meet certain
conditions. This included a requirement that the
property owner had applied for relief through the
STAY DC program. D.C. Code §§ 16-1501(c)(1), 423505.01(b-1)(2).
Gallo challenges these laws and programs on
several grounds. First, he argues the PPP violates the
Constitution’s Contracts Clause. See Compl. ¶ 12(iii).
Next, Gallo argues the Filing Moratorium and Debt
Collection Moratorium violate his constitutional right
of access to courts and his rights under the
Constitution’s Contract Clause, Takings Clause, and
Petition Clause. See id. at 2, ¶¶ 5, 12.2 Finally, Gallo
contends that judicial estoppel precludes dismissal of
his claims. See Pl.’s Opp’n at 4–5, ECF No. 8. The
District moved to dismiss, and Gallo opposes that
motion. The motions are now ripe.
II.
To survive a motion to dismiss under Rule
12(b)(1), Gallo bears the burden of proving that the
Court has subject matter jurisdiction to hear his
claims. See Arpaio v. Obama, 797 F.3d 11, 19 (D.C.
Cir. 2015). In evaluating a motion to dismiss under
Rule 12(b)(1), the Court must “treat the complaint’s
factual allegations as true . . . and must grant
plaintiff[s] the benefit of all inferences that can be
derived from the facts alleged.” Sparrow v. United Air
Lines, Inc., 216F.3d 1111, 1113 (D.C. Cir. 2000)
(cleaned up).
2 All page numbers refer to the pagination generated by
the Court’s CM/ECF filing system.
54a
To survive a motion to dismiss under Rule
12(b)(6), “a complaint must contain sufficient factual
matter, accepted as true, to state a claim to relief that
is plausible on its face.” Hurd v. Dist. of Colum., 864
F.3d 671, 678 (D.C. Cir. 2017) (cleaned up). A plaintiff
must plead “factual content that allows the court to
draw the reasonable inference that the defendant is
liable for the misconduct alleged.” Ashcroft v. Iqbal,
556 U.S. 662, 678 (2009). Courts accept complaints
‘factual allegations as true and grant plaintiffs “all
inferences that can be derived from the facts alleged.”
L. Xia v. Tillerson, 865 F.3d 643, 649 (D.C. Cir. 2017)
(cleaned up).
The Court need not, however, credit “a legal
conclusion couched as a factual allegation. “Iqbal, 556
U.S. at 678 (cleaned up). The Court considers “only the
facts alleged in the complaint, any documents either
attached to or incorporated in the complaint[,] and
matters of which [it] may take judicial notice.” Hurd,
864 F.3d at 678 (cleaned up).
Gallo proceeds without counsel. This triggers
special solicitude for him. “A document filed pro se is
to be liberally construed, and a pro se complaint,
however inartfully pleaded, must be held to less
stringent standards than formal pleadings drafted by
lawyers.” Erickson v. Pardus,551 U.S. 89, 94 (2007)
(cleaned up). More, courts assess a pro se complaint
“in light of all filings, including filings responsive to a
motion to dismiss.” Brown v. Whole Foods Mkt. Grp.,
Inc., 789 F.3d 146, 152 (D.C. Cir. 2015) (cleaned up).
But pro se plaintiffs must still adequately plead their
complaint consistent with the edicts of Iqbal and Bell
Atlantic v. Twombly, 550 U.S.544 (2007). See Atherton
55a
v. D.C. Off. of Mayor, 567 F.3d 672, 681–82 (D.C. Cir.
2009).
III.
A.
First, consider Gallo’s claim that the PPP
violates the Constitution’s Contracts Clause. See
Compl. ¶ 12(iii). The District responds that Gallo fails
to properly allege standing for this claim. See Def.’s
Mot. to Dismiss at 20–21 (Def.’s Mem.), ECF No. 6-1.
To show standing, Gallo must allege: (1) that he has
suffered an injury in fact that is both concrete and
particularized and actual or imminent; (2) that the
injury is fairly traceable to the District’s actions; and
(3) that a favorable decision is likely to redress the
identified harm. See Sabre, Inc.v. DOT, 429 F.3d 1113,
1117 (D.C. Cir. 2005).
Gallo shows no injury tied to the PPP. In the
sole section of his Complaint where he discusses the
PPP, see Compl. ¶ 12(iii), he does not ask for nominal
damages, unlike many other sections of his
Complaint, see, e.g., Id. ¶¶ 12(i)–(ii), 12(iv).
Elsewhere, he asks for compensation in the amount of
$36,400 for property taken by the District, see id. ¶
12(vi);$10,000 in legal fees stemming from a related
case, see id. ¶ 12(vii); $50,000 in compensatory
damages for mental anguish, see id. ¶ 12(viii); and
$37,500 in lost time and diversion of resources, see id.
¶ 12(ix).
But he ties none of these damages to his PPP
claim. Nor is it clear how he could. The PPP is a
remedy for the District’s laws restricting evictions.
The Court can conceive of no way to tie his monetary
losses to a remedy. Gallo thus not only fails to allege
56a
injury, he also fails to show traceability and
redressability. This is fatal to his PPP claim.
B.
Second, consider Gallo’s claims about the Filing
Moratorium and the Debt Collection Moratorium. See
Compl. at 2. Gallo contends these two laws violate his
right of access to courts and one or more of the
Contract Clause, the Takings Clause, and the Petition
Clause.3 Id. ¶ 12.The Court takes each of these rights
in turn.
1.
Consider first Gallo’s right of access to the
courts. See Compl. ¶ 12(i). The Supreme Court has
recognized a right of access to courts arising from
various constitutional provisions. See Christopher v.
Harbury, 536 U.S. 403, 415 n.12 (2002) (invoking the
Article IV Privileges and Immunities Clause, the First
Amendment Petition Clause, the Fifth Amendment
Due Process
Clause, and the Fourteenth
Amendment’s Equal Protection and Due Process
Clauses). Although Gallo does not specify which
District law allegedly violates his right of access to the
courts, see Compl. at 2, ¶ 12(i), the Court broadly
Gallo also references the Fifth Amendment’s Due
Process Clause. See Compl. at 2. But he makes no argument
about the Due Process Clause and references it only in one
instance when discussing his takings claim. See id. ¶ 12(v). Gallo
thus presents no separate argument under the Due Process
Clause that the Court does not consider in its Takings Clause
analysis. See infra III.B.3. And if Gallo is arguing that
“suspension of [a] cause of action” constitutes a taking separate
from the taking of his property, see Compl. ¶ 12(v), the Court
addresses this when evaluating Gallo’s claim that the District
abridged his right of access to the courts. See infra Section
III.B.1.
3
57a
construes his Complaint as challenging both the
Filing and the Debt Collection Moratoria.
Start with the Filing Moratorium. While Gallo’s
claim is far from trivial, it is too late. He already
argued and lost this claim in the D.C. Court of
Appeals. Thus, the doctrine of claim preclusion bars
him from bringing that same claim here.
“The general principle of claim preclusion is
that a final, valid judgment on the merits precludes
any further litigation between the same parties on the
same cause of action.” Stanton v. D.C. Ct. of Appeals,
127 F.3d 72, 78 (D.C. Cir. 1997). “The District of
Columbia, like the majority of jurisdictions, has
adopted the Second Restatement’s ‘transactional’
approach under which a ‘cause of action,’ for purposes
of claim preclusion, comprises all rights of the plaintiff
to remedies against the defendant with respect to all
or any part of the transaction, or series of connected
transactions, out of which the action arose.” Id. at 78
(cleaned up). A “cause of action is determined by the
factual nucleus.” Sheptock v. Fenty, 707 F.3d 326, 330
(D.C. Cir.2013) (cleaned up). Thus, “[a] court looks at
‘whether the facts are related in time, space, origin, or
motivation, whether they form a convenient trial unit,
and whether their treatment as a unit conforms to the
parties’ expectations.’” Casares v. Wells Fargo Bank,
N.A., 268 F. Supp. 3d248, 254 (D.D.C. 2017) (quoting
Restatement (Second) of Judgments § 24(2) (1982)).
Gallo’s litigation in D.C. courts began when he
filed an eviction action in D.C. Superior Court in May
2020. See Gallo Holdings LLC – Series 2 vs. Hopkins,
2020 LTB 008032 (D.C. Super. Ct. May 5, 2020). Soon
after, the presiding judge of the Superior Court’s Civil
Division issued an order directing all plaintiffs who
58a
filed an eviction action after March 11, 2020, to show
cause why their cases should not be dismissed because
of the Filing Moratorium. See Judge Laura A.
Cordero, General Order Concerning Landlord and
Tenant Cases Filed on or After March 11, 2020 (July
28, 2020), https://bit.ly/38MBuQy. The Order
appointed the Honorable Anthony Epstein “to
adjudicate all questions of law common to any eviction
cases filed on or after March 11, 2020 in the Landlord
and Tenant Branch.” Id.
Judge Epstein issued a thoughtful opinion
declaring the Filing Moratorium unconstitutional
because it denied landlords access to the courts.4 See
Gallo Holdings, 2020LTB 008032, Order (D.C. Super.
Ct. Dec. 16, 2020). The District, having previously
intervened, appealed the ruling to the District of
Columbia Court of Appeals (DCCA). See id., Notice of
Appeal (D.C. Super. Ct. Jan. 14, 2021). The DCCA
consolidated four similar appeals into District of
Columbia v. Towers, 260 A.3d 690 (D.C. 2021). See id.;
see also D.C. Ct. App., Case Information: 21-cv-0037
(listing both Alexander Gallo and Gallo Holdings, LLC
Series 2, as appellants in a case consolidated with 21cv-0034). Gallo filed motions in Towers, see, e.g., id.,
Brief (Appellee Gallo) (July 2, 2021), and presented
oral argument before the DCCA, see Def.’s Mot. at 17
n.10; Pl.’s Opp’n at 2.
Towers overruled Gallo Holdings. See 260 A.3d
at 696. The Towers court determined that “the right of
Judge Epstein declined to consider any other
constitutional issues, including potential violations of the
Contracts Clause and whether the Filing Moratorium constitutes
a taking. See Gallo Holdings, 2020 LTB 008032, Order at 39.
4
59a
access to the courts [is] not implicated when the
underlying claim [does] not involve a fundamental
interest.” Id. at 694. Because the Filing Moratorium
was only temporary, the court found that it “involves
no abrogation of contracts or deprivation of the ability
to file for eviction.” Id. at 695. The court thus
concluded that “we do not find a fundamental
constitutional right to evictions on a particular
timetable to support appellees’ claim their right of
access to the courts is violated by the District’s filing
moratorium.” Id. at 696 (cleaned up).
Gallo’s claim in Towers arose from the same
“factual nucleus” as his present claim. Sheptock, 707
F.3d at 330. The very same eviction is at issue in both
cases, see Compl. ¶¶ 7–11,so the facts are related in
time, space, origin, and motivation, see Sheptock, 707
F.3d at 330.Thus, the Court treats the eviction before
the Superior Court and the DCCA and the eviction
before this Court as the same “unit.” Id. And because
the Court must “give the same preclusive effect to a
state-court judgment as another court of that State
would give,” Exxon Mobil Corp. v. Saudi Basic Indus.
Corp., 544 U.S. 280, 293 (2005), to the extent Gallo
challenges the Filing Moratorium, the Court finds his
access to courts claim precluded.
Consider next the Debt Collection Moratorium.
The District argued that: (1) Gallo’s claim does not
implicate the right of access to courts because the D.C.
Council can lawfully abridge causes of action and
merely imposed delays; (2) Gallo’s claim does not
implicate the right of access because filing a debt
collection action was not and is not Gallo’s sole means
of redress; and (3) even if the Debt Collection
Moratorium implicated the right of access to the
60a
courts, it would survive rational basis review. See
Def.’s Mem. at 24–29. Because Gallo fails to respond
to these arguments in his opposition, the Court treats
them as conceded. See Wannall v. Honeywell, Inc., 775
F.3d 425, 428 (D.C. Cir. 2014). Gallo’s claim that the
Debt Collection Moratorium violates his right of
access to the courts thus fails.5
2.
Consider next Gallo’s Contract Clause claim.
Gallo alleges that both the Filing Moratorium and the
PPP violated his rights under the Contract Clause.
See Compl. ¶¶ 12(ii)–(iii). The Court considers Gallo’s
argument only about the Filing Moratorium because
he lacks standing for his PPP claim. See supra Section
III. A.
The Contracts Clause provides that “[n]o state
shall . . . pass any . . . Law impairing the Obligation of
Contracts.” U.S. Const., Art. I, § 10, cl. 1. The Clause
“applies to any kind of contract” but “not all laws
affecting pre-existing contracts violate the Clause.”
Sveen v. Melin,138 S. Ct. 1815, 1821 (2018). Courts
use a two-step test to determine whether a law
implicates the Contracts Clause. First, courts look to
“whether the state law has operated as a substantial
impairment of a contractual relationship.” Id. at
1821–22 (2018) (cleaned up). If a substantial
impairment exists, then courts examine “whether the
5 The
District made these same three arguments with
respect to the Filing Moratorium. See Def.’s Mem. at 24–29.
Because Gallo did not respond to those arguments with respect
to the Filing Moratorium either, see Pl.’s Opp’n at 2 (discussing
the access to the courts claim but failing to respond to the
District’s arguments), these are alternate bases for ruling
against Gallo’s claim about the Filing Moratorium.
61a
state law is drawn in an appropriate and reasonable
way to advance a significant and legitimate public
purpose.” Id. at 1822 (cleaned up).
The Filing Moratorium does not substantially
impair Gallo’s contractual relationship with his
tenant. To determine whether a substantial
impairment exists, the Court must look at the “extent
to which the law undermines the contractual bargain,
interferes with a party’s reasonable expectations, and
prevents the party from safeguarding or reinstating
his rights.” Id. When engaging in this analysis, the
Court bears in mind Home Building & Loan
Association v. Blaisdell, 290 U.S. 398 (1934), and the
Supreme Court’s subsequent Contracts Clause
jurisprudence. In Blaisdell, the Court “upheld
Minnesota’s statutory moratorium against home
foreclosures, in part, because the legislation was
addressed to the legitimate end of protecting a basic
interest of society.” Keystone Bituminous Coal Ass’n v.
DeBenedictis, 480 U.S. 470, 503(1987) (cleaned up).
Since Blaisdell, “courts have often upheld
statutes which cut off or modified private contracts
where it appeared that the legislation sought to attain
social purposes of greater importance than
predictability and reliance.” Leedom v. Int’l Bhd. of
Elec. Workers, 278 F.2d237, 240 (D.C. Cir. 1960); see
also Matsuda v. Honolulu, 512 F.3d 1148, 1152 (9th
Cir. 2008)(noting that, after Blaisdell, “the Supreme
Court has construed [the Contracts Clause]
prohibition narrowly in order to ensure that local
governments retain the flexibility to exercise their
police powers effectively”); Allied Structural Steel Co.
v. Spannaus, 438 U.S. 234, 240 (1978) (“[T]he[state’s]
police power[] is an exercise of the sovereign right of
62a
the Government to protect the lives, health, morals,
comfort and general welfare of the people, and is
paramount to any rights under contracts between
individuals.”) (cleaned up).
With this binding teaching in mind, the Court
finds that the Filing Moratorium imposes an
acceptable burden on Gallo’s “contractual bargain.”
Sveen, 138 S. Ct. at 1822. The Supreme Court has
recognized the national importance of controlling the
pandemic. See Roman Cath. Diocese of Brooklyn v.
Cuomo, 141 S. Ct. 63, 67 (2020) (“Stemming the
spread of COVID–19 is unquestionably a compelling
interest[.]”); see also Roman Cath. Archbishop of
Wash. v. Bowser,531 F. Supp. 3d 22, 37–38 (D.D.C.
2021) (same for D.C. government). The Moratorium
thus aims to achieve an important social interest. Its
effects are temporary, and rent continues to accrue
while the Moratorium is in effect. Gallo’s remedies for
contractual breaches are not eliminated but merely
delayed because of a national emergency. See
Blaisdell, 290 U.S. at 431(“The obligations of a
contract are impaired by a law which renders them
invalid, or releases or extinguishes them.”).
Indeed, other district courts considering
various state and local eviction moratoria have come
to the same conclusion. See, e.g., Elmsford Apt.
Assocs., LLC v. Cuomo, 469 F. Supp. 3d148, 172
(S.D.N.Y. 2020) (finding that the New York eviction
moratorium did not substantially impair contractual
rights because it did not “eliminate” remedies but
“merely postpone[d] the date on which landlords may
commence summary proceedings against their
tenants”); Auracle Homes, LLC v. Lamont, 478 F.
Supp. 3d 199, 244 (D. Conn. 2020) (same, for
63a
Connecticut’s state moratorium); HAPCO v. City of
Philadelphia, 482 F. Supp. 3d 337, 352 (E.D. Pa. 2020)
(same, for Philadelphia’s city moratorium).
This temporal limitation on D.C.’s moratorium
distinguishes Gallo’s case from Heights Apartments,
LLC v. Walz, 30 F.4th 720 (8th Cir. 2022) (Walz I)—a
supplemental authority he submitted. See Pl.’s Notice
of Supp. Authority, ECF No. 13. Walz I found the
Minnesota governor’s executive order mandating a
statewide eviction moratorium violated the Contracts
Clause, but it relied heavily on the fact that the
executive order had no end date. See Walz I, 30F.4th
at 724, 729–32. For example, the Walz I court noted
that although landlords in Minnesota operated in a
heavily regulated businesses, none of the preexisting
regulations “provided reasonable notice that
landlords’ right to exclude would be severely curtailed
for an indefinite duration.” Id. at 729 (emphasis
added). The court also distinguished the executive
order from Blaisdell because the “the legislation in
Blaisdell had an explicit end date.” Id. at 730. The
court acknowledged that “the Supreme Court has
upheld emergency legislative acts that suspend ‘all
possessory remedies’ for removing tenants or
occupants in possession against Contract Clause
challenges,” but it highlighted that “those laws were
unlike the [executive order] because they had . . .
specified end dates.” Id.
More, Gallo cannot claim that the Filing
Moratorium interferes with his “reasonable
expectations.” Sveen, 138 S. Ct. at 1822. For over a
century, landlords in the District have had fair
warning that legislation enacted because of
emergencies can impact landlord rights. In Hirsh, the
64a
Supreme Court considered federal legislation that
required a landlord in the District to give a tenant 30
days’ notice of intent to repossess the property. Hirsh,
256 U.S. at 154. The landlord, Hirsh, argued the law
was an unconstitutional taking. The Court disagreed.
It noted the legislation came about because of
“emergencies growing out of the war” and would
expire in two years. Id. The Court reasoned that in
times of emergencies, the government could pass
ordinarily impermissible laws. Because “[h]ousing is a
necessary of life” and “[a]ll the elements of a public
interest justifying some degree of public control are
present,” the Court found for the tenant. Id. at 156.
And even when no emergency exists, the
District has regulated landlord-tenant relationships
through other means. For example, rent control laws
have existed in the District since 1974. See Suggs v.
Lakritz Adler Mgmt., LLC, 933 A.2d 795, 797 (D.C.
2007). Even though Gallo could not have foreseen the
pandemic, he cannot reasonably claim surprise at the
District’s response.
Gallo cites several cases in his opposition that
he says counsel otherwise. But for each, he cites
selectively, and a complete examination of the cases
does not support his position:
• Gallo cites Oshkosh Waterworks Co. v Oshkosh,
187 U.S. 437, 440 (1903), for the proposition that a
legislature may not “materially delay or embarrass
the enforcement of rights” under a contract. Pl.’s
Opp’n at 3. But immediately following the text
Gallo cites, the Court said: “[I]t is equally well
settled that the legislature may modify or change
existing remedies, or prescribe new modes of
procedure, without impairing the obligation of
65a
•
•
contracts, provided a substantial or efficacious
remedy remains or is given, by means of which a
party can enforce his rights under the contract.”
Oshkosh Waterworks, 187 U.S. at 439. Because the
District provided programs to assist landlords, this
case supports the District, not Gallo.
Gallo cites Louisiana v. New Orleans, 102 U.S. 203,
207 (1880), for the proposition that “[a]ny
authorization of the postponement of payment . . .
is in conflict with the constitutional inhibition.”
Pl.’s Opp’n at 3. But despite that pronouncement,
the Supreme Court upheld a law requiring
registration of judgments before the city of New
Orleans would pay them. See Louisiana, 102 U.S.
at 207. And in any event, this case does not control
given more recent, relevant precedent about a
legislature’s ability to modify private contracts to
“protect[] a basic interest of society.” Keystone
Bituminous Coal Ass’n, 480 U.S. at 503 (cleaned
up)
(describing
the
effect
of
Blaisdell
jurisprudence). For the same reason, Gallo’s
reference to a nineteenth century case involving
mortgage contracts, Barnitz v. Beverly, 163 U.S.
118 (1896), is unavailing. See Pl.’s Opp’n at 3.
Gallo cites Melendez v. New York City, 16 F.4th 992
(2d Cir. 2021), claiming it “found that a challenge
to a COVID moratorium under the Contracts
clause sufficiently states a claim.” Pl’s Opp’n at 3.
True. But the Second Circuit relied heavily on the
fact that the law under review permanently
impaired a landlord’s contractual rights. See
Melendez, 16 F.4th at 1033. The Filing Moratorium
is not permanent and does not bar landlords from
seeking past-due rent after its expiration.
66a
•
Finally, Gallo cites Apartment Association of L.A.
Cty., Inc. v. City of Los Angeles, 10F.4th 905 (9th
Cir. 2021), which he says “reached the merits” of a
Contracts Clause issue and “assum[ed] a
‘substantial’ impairment.” Pl.’s Opp’n at 3. But
contrary to Gallo’s claim, the court held that “there
is no apparent basis under modern cases to find the
challenged provisions unconstitutional under the
Contracts Clause. . . . [C]ontemporary Supreme
Court case law has severely limited the Contracts
Clause’s potency.” Apartments Ass’n, 10 F.4th at
909. This case supports the District, not Gallo.
Because the Filing Moratorium does not
substantially impair Gallo’s rights under the
Contracts Clause, the Court need not consider
whether it is narrowly drawn. Gallo’s Contracts
Clause claim fails.
3.
Now consider Gallo’s claim that the District’s
actions violate the Takings Clause. See Compl. ¶¶
12(iv)–(vi). Gallo does not specifically identify which
piece of the District’s legislation he is challenging.
Because he references the “eviction ban,” see id. ¶
12(iv), and because he elsewhere equates the “eviction
ban” with the Filing Moratorium, see Pl.’s Mot. To
Strike at 2, ECF No. 10, the Court interprets Gallo to
argue that the Filing Moratorium violates the Takings
Clause.
A taking may be either a physical or regulatory
taking. See Tahoe-Sierra Pres. Council,Inc. v. Tahoe
Reg’l Plan. Agency, 535 U.S. 302, 321 (2002). Gallo
does not specify in his Complaint what type of taking
the District purportedly wrought. The District
67a
construes his Complaint as alleging a regulatory
taking, see Def.’s Mem. at 36, but in his opposition,
Gallo suggests he is alleging a physical taking—
although he does not disclaim a regulatory taking.
SeePl.’s Opp’n at 3–4. The Court thus analyzes Gallo’s
claim under both theories.
Start with a physical taking. A physical taking
occurs when there is “a direct government
appropriation or physical invasion of private
property.” Lingle v. Chevron U.S.A. Inc., 544 U.S.528,
537 (2005).
Gallo argues that Cedar Point Nursery v.
Hassid, 141 S. Ct. 2063 (2021), controls this analysis.
Compl. ¶ 12(iv). In Cedar Point, “[a] California
regulation grant[ed] labor organizations a ‘right to
take access’ to an agricultural employer’s property in
order to solicit support for unionization.” Cedar Point,
141 S. Ct. at 2069. Two growers challenged the
regulation, arguing it constituted a per se physical
taking under the Fifth and Fourteenth Amendments.
Id. at 2070. The Court agreed. Noting that “[t]he right
to exclude is one of the most treasured rights of
property ownership,” the Court held that “[w]henever
a regulation results in a physical appropriation of
property, a per se [physical] taking has occurred.” Id.
at2072 (cleaned up).
But Cedar Point is distinguishable. Unlike the
growers, Gallo invited the nonpaying tenant onto his
property. This changes the analysis, and an older
case—Yee v. City of Escondido,503 U.S. 519 (1992)—
controls. In Yee, owners of mobile home parks
challenged a local rent control ordinance. Id. at 522.
The park owners contended that the interplay of a
California mobile home law and the rent control
68a
ordinance “amount[ed] to a physical occupation of
their property.” Id. The park owners argued that the
rent control ordinance “transferred a discrete interest
in land—the right to occupy the land indefinitely at a
submarket rent—from the park owner to the mobile
homeowner. [The park owners] contend[ed] that what
ha[d] been transferred from park owner to mobile
homeowner [was] no less than a right of physical
occupation of the park owner’s land.” Id. at 527
(emphasis added).
The Court disagreed. It noted that the park
owners “voluntarily rented their land to the mobile
home owners. . . . Put bluntly no government has
required any physical invasion of [the park owner’s]
property. [The park owners] tenants were invited by
[the park owners], not forced upon them by the
government.” Id. at 528–29. The park owners
countered that the ordinance “transferr[ed] wealth
from park owners to incumbent mobile home owners,”
so they were entitled to compensation. Id. at 529. But
the Court noted that land use regulations regularly
lead to such wealth transfers. “[T]he existence of the
transfer in itself does not convert regulation into
physical invasion. . . . Because [the park owners]
voluntarily open[ed] their property to occupation by
others, [the park owners] cannot assert a per se right
to compensation based on their inability to exclude
particular individuals.” Id. at 529–31.
So too here. The District’s laws do not force
Gallo to give anyone access to his property that he did
not invite. So he does not suffer the same infringement
on his right to exclude as the growers in Cedar Point.
See FCC v. Fla. Power Corp., 480 U.S. 245, 252 (1987)
(“[I]t is the invitation . . . that makes the difference.”).
69a
In coming to this conclusion, the Court joins multiple
courts around the country that have recently
considered similar state and local eviction moratoria.
See, e.g., Jevons v. Inslee, 561 F. Supp. 3d 1082, 1105–
1108 (E.D. Wash. 2021) (rejecting plaintiffs’ argument
that Cedar Point controlled the analysis and applying
Yee to find a state eviction moratorium did not
constitute a per se physical taking); S. Cal. Rental
Hous. Ass’n v. Cnty. of San Diego, 550 F. Supp. 3d 853,
864–867 (S.D. Cal. 2021) (same).
Gallo urges the Court to follow the lead of the
Eighth Circuit in Walz I and apply Cedar Point rather
than Yee. See Pl.’s Notice of Supp. Authority.
Respectfully, the Court is unconvinced by Walz I on
this point. Walz I characterized the landlords in Yee
as seeking “to exclude future or incoming tenants
rather than existing tenants.” Walz I, 30 F.4th at
733(emphasis added). The Eighth Circuit said this
distinguished the claims of plaintiffs in Yee from those
in Walz I because the Walz I plaintiff could not evict
current tenants. Id. (“According to[the Walz I
plaintiff’s
complaint],
the
[executive
orders
establishing the eviction moratorium]‘turned every
lease in Minnesota into an indefinite lease, terminable
only at the option of the tenant.’”). But the plaintiffs
in Yee also alleged they were unable to evict current
tenants: “According to the complaint, ‘the rent control
law has had the effect of . . . granting to the tenants of
mobile homes presently in The Park, as well as the
successors in interest of such tenants, the right to
physically permanently occupy and use the real
property of Plaintiff.” Yee,503 U.S. at 525 (cleaned up)
(emphasis added). Walz I, then, chose to follow Cedar
Point rather than Yee because it misinterpreted the
70a
Yee plaintiffs’ claims. See also Heights Apartments,
LLC v. Walz, 2022 WL 2167494, at *1 (8th Cir. June
16, 2022) (Colloton, J., dissenting from denial of
rehearing en banc) (Walz II) (contending that Yee, not
Cedar Point, should have guided the panel’s decision
and arguing the decision to disregard Yee turned on a
misunderstanding of the Yee plaintiff’s claims).6
More, neither Gallo nor the Walz I court
contended with Hirsh. Hirsh upheld emergency
legislation prohibiting evictions for two years in most
circumstances. See Hirsh, 256 U.S. at154. Hirsh is like
6 To be sure, there is some tension between Cedar Point
and Yee, as portions of Cedar Point appear to conflict with Yee.
See, e.g., Cedar Point, 141 S. Ct. at 2071 (stating a physical
taking occurs when the government “appropriate[es] private
property for itself or a third party”) (emphasis added), id. at 2074
(“The regulation appropriates a right to physically invade the
growers’ property—to literally ‘take access,’ as the regulation
provides. It is therefore a per se physical taking under our
precedents.”) (cleaned up), id. at 2077 (“[T]he right to exclude . .
. is a fundamental element of the property right that cannot be
balanced away.”) (cleaned up).
But Cedar Point did not explicitly overrule Yee—indeed,
it cited Yee for principles of takings law. See id. at 2072; see also
Rodriguez de Quijas v. Shearson/Am. Exp., Inc., 490 U.S. 477,
484 (1989) (“If a precedent of [the Supreme] Court has direct
application in a case, yet appears to rest on reasons rejected in
some other line of decisions, the [lower court] should follow the
case which directly controls, leaving to this Court the prerogative
of overruling its own decisions.”).
More, circuit courts continue to cite Yee as good law even
after Cedar Point. See, e.g., Ballinger v. City of Oakland, 24 F.4th
1287, 1292 (9th Cir. 2022); CDK Glob. LLC v. Brnovich, 16 F.4th
1266, 1282 (9th Cir. 2021). Thus, because Yee is still precedential
and is a closer fit to this case than Cedar Point, the Court
declines Gallo’s invitation to jettison Yee.
71a
Yee, which denied the plaintiff-landlords’ takings
claim even though they could evict tenants only after
giving six to twelve months’ notice. See Yee, 503 U.S.
at 527–28.Compare the laws at issue in those cases to
the Filing Moratorium, which was always temporary,
lasted about 18 months (from May 2020 to October
2021), and has now expired.7 See Def.’s Mem. at 14–
15; see also Walz II, 2022 WL 2167494 at *1 (Colloton,
J., dissenting from denial of rehearing en banc) (“[T]he
[Walz I] panel decision never addressed why the
scheme in Yee that allowed a landlord to evict existing
tenants only for limited reasons after up to 12 months’
notice did not constitute a per se taking, while a
temporary eviction moratorium during a pandemic
ostensibly does.”). The nature and duration of the
Filing Moratorium thus make it permissible under
governing Supreme Court precedent.
Finally, the Filing Moratorium does not
constitute a physical taking because physical takings
occur when the owner “can make no nonpossessory
use of the property.” Loretto v. Teleprompter
Manhattan CATV Corp., 458 U.S. 419, 435–36 (1982).
But that is not the case here because the Filing
7 Before the Filing Moratorium, the D.C. Council enacted
an Eviction Moratorium. See Def.’s Mem. at 12; COVID-19
Response Emergency Amendment Act of 2020, D.C. Act 23-247,
§ 308 (Mar. 17, 2020). This Act amended D.C. Code §§ 423505.01(k)(3), (k-1). But Gallo does not challenge the Eviction
Moratorium. See Compl. at 2 (listing the code provisions for the
Filing Moratorium, the Debt Collection Moratorium, and the
PPP, but not the Eviction Moratorium). And even if he did
challenge it, at most it would add three months to the period
during which he could not evict a tenant, bringing the total to 21
months. This is still less than the two-year eviction moratorium
the Supreme Court upheld in Hirsh.
72a
Moratorium did not stop rent from accruing. See also
Tahoe-Sierra, 535U.S. at 322–23 (“[A] government
regulation that merely prohibits landlords from
evicting tenants unwilling to pay a higher rent . . .
does not constitute a categorical taking.”); Fla. Power
Corp., 480 U.S. at 252 (“[S]tatutes regulating the
economic relations of landlords and tenants are not
per se takings.”). Thus, the Filing Moratorium does
not constitute a physical taking.
Now consider regulatory takings. In evaluating
these takings, the Court relies on the framework from
Penn Central Transportation Company v. New York
City, 438 U.S. 104 (1978).See Tahoe-Sierra, 535 U.S.
at 326–27. Penn Central’s inquiry has three parts: the
regulation’s economic effect on the claimant, the effect
on investment-backed expectations, and the character
of the government action. Dist. Intown Properties Ltd.
P’ship v. Dist. of Colum., 198 F.3d 874,883 (D.C. Cir.
1999).
Start with the Filing Moratorium’s economic
effect on Gallo. Under Gallo’s estimate of the
property’s fair use value, the Moratorium has cost him
$36,400 through the end of April 2022. Compl. ¶
12(vi). Added to that are $10,000 he claims he spent
on legal counsel for his action in Superior Court,
$50,000 in compensatory damages for mental
anguish, and $37,500 for lost time and diversion of
resources. Id. ¶¶ 12(vii)–(ix).
This factor cuts in Gallo’s favor. The District’s
efforts to aid tenants have no doubt come at the
expense of landlords like Gallo. But he was not
without recourse. The District enacted the PPP to help
landlords like him recover some of their losses. Yet
Gallo did not use it. If he had set up a PPP account
73a
and if his tenant had still been unable to pay, Gallo
would have been free to file an eviction action despite
the Filing Moratorium. See D.C. Code § 42-3192.01(g).
More, the Filing Moratorium lasted only during the
Public Health Emergency and 60 days after. See
Coronavirus Support Emergency Amendment Act of
2020, D.C. Act 23-326, § 404 (May 27,2020). The
Public Health Emergency expired on July 25, 2021.
See Gov’t of the Dist. of Columbia, End of Public
Health Emergency and Extension of Public
Emergency (July 24, 2021),https://bit.ly/3zZM8fL. In
anticipation of the emergency expiring, the Council
passed Phasing Act, which allowed property owners to
resume filing eviction cases for nonpayment of rent
after October 2021 if they first applied for emergency
assistance. See D.C. Code §§ 16-1501(c)(1);423505.01(b). But Gallo does not allege he sought
assistance or has refiled for eviction.
Gallo must put forth “striking evidence of
economic effects to prevail.” Dist. Intown,198 F.3d at
883. Despite providing evidence that the Filing
Moratorium harmed him financially, his evidence
does not meet that high standard.
Now consider the effect on Gallo’s investmentbacked expectations. Gallo “cannot establish a takings
claim simply by showing that [he has] been denied the
ability to exploit a property interest” in the particular
way he desires. Dist. Intown, 198 F.3d at 879. Indeed,
the Supreme Court “has consistently affirmed that
States have broad power to regulate housing
conditions in general and the landlord-tenant
relationship
in
particular
without
paying
compensation for all economic injuries that such
regulation entails.” Loretto, 458 U.S. at 440;see also
74a
Yee, 503 U.S. at 529 (“When a landowner decides to
rent his land to tenants, the government may place
ceilings on the rents the landowner can charge, or
require the landowner to accept tenants he does not
like, without automatically having to pay
compensation.”) (cleaned up).
More, “[b]businesses that operate in an
industry with a history of regulation have no
reasonable expectation that regulation will not be
strengthened to achieve established legislative ends.”
Dist. Intown, 198 F.3d at 884. This is especially true
during times of emergency. See Hirsh, 256 U.S. 153–
54. Thus, Gallo could not reasonably believe that the
District would never try to regulate his leases. And
because the District provided avenues for Gallo to
recoup some of his purported losses, the Court
declines to find a frustration of his investment-backed
expectations.
Consider also the character of the District’s
actions. “[T]he character of the governmental action
depends both on whether the government has
legitimized a physical occupation of the property, and
whether the regulation has a legitimate public
purpose.” Id. at879 (cleaned up). The District’s actions
here legitimized a temporary physical occupation of
the property but only by individuals whom landlords
had invited onto their property. And its legislation
had a legitimate public purpose. The Supreme Court
has upheld similar legislation, see Hirsh, 256 U.S.
153, and the Circuit has upheld legislation restricting
the use of private property even in less dire
circumstances where no emergency existed, see Dist.
Intown, 198 F.3dat 877.
The Court finds there was no regulatory taking.
75a
IV.
Finally, Gallo argues that judicial estoppel
precludes dismissal. See Pl.’s Opp’n at 4–5. The
doctrine of judicial estoppel “generally prevents a
party from prevailing in one phase of a case on an
argument and then relying on a contradictory
argument to prevail in another phase.” New
Hampshire v. Maine, 532 U.S. 742, 749 (2001)
(cleaned up). Although the doctrine is not “reducible
to any general formulation of principle,” several
factors guide a court’s analysis of whether to invoke
the doctrine. See id. at 750 (cleaned up). One such
principle is that, for the doctrine to apply, “a party’s
later position must be clearly inconsistent with its
earlier position.” Id. (cleaned up).
Gallo argues the District violated this
principal. In the DCCA proceedings, one of the issues
was Gallo’s claim that the District had infringed on
his right of access to the courts. Intertwined with this
claim was Gallo’s entitlement to funds from the STAY
DC program. In commenting on Gallo’s entitlement to
these funds, the District argued that the issue of
STAY DC compensation is “wholly separate from the
constitutional issue of access to the courts . . . Mr.
Gallo has always been able to file other claims to
vindicate his asserted property rights, including claim
under the Takings Clause.” Pl.’s Opp’n at 5. But in the
current proceeding, says Gallo, the District argues he
has no Takings Clause claim. Gallo maintains that
this conflicts with the argument the District made
before the DCCA and that the Court should stop the
District from trying to “permanently bar the very
claim it stated would vindicate his rights.” Id.
76a
Gallo’s claim fails because the District did not
make contradictory statements. In arguing that the
existence of STAY DC funding did not impact Gallo’s
access to the courts, the District argued that he was
free to file a claim under the Takings Clause. See
Gallo Holdings, No. 21-CV-0037, Rule 28(k) Cit. of
Supp. Authority by Dist. of Colum. at 2 (D.C. Ct. App.
Sept. 27,2021). The District did not argue that such a
claim would succeed. Nor did it suggest it would allow
any such claim to go unopposed. It merely argued that
Gallo’s ability to bring such a claim undercut his
argument that his access to the courts was denied.
Because the District did not make contradictory
arguments, the doctrine of judicial estoppel does not
apply.
V.
For the all these reasons, the Court will grant
the District’s motion to dismiss.8 A separate order will
issue.
8 During this litigation, Gallo filed two motions: a motion
to strike, see Mot. to Strike, and a motion to expedite, see Mot.
to Expedite, ECF No. 15.
The District opposed the motion to strike by arguing that
Gallo “cannot move to strike the District’s memoranda in support
of its motion.” Opp’n to Mot. to Strike at 4, ECF No. 11. Gallo
responded by asking the Court to construe his motion to strike
as a motion for leave to file a surreply. See Reply in Supp. of Mot.
to Strike at 1, ECF No. 12. Sur-replies are generally disfavored,
see Kiewit Power Constructors Co. v. U.S. Dep’t of Labor, 959
F.3d 381, 393 (D.C. Cir. 2020), and “and the determination of
whether to grant or deny leave is entrusted to the sound
discretion of the district court.” Crummey v. Soc. Sec. Admin.,
794 F. Supp. 2d 46, 62 (D.D.C. 2011). The primary argument in
Gallo’s motion to strike is that the filing ban and the eviction ban
are the same. See Mot. to Strike at 2. Because the Court equated
these two bans and still found for the District, see supra Section
77a
Dated: June 21, 2022 TREVOR N. McFADDEN,
U.S.D.J.
Appendix G: Relevant Statutory Provisions
Coronavirus Omnibus Emergency Amendment Act of
2020, 67 D.C. Reg. 5235, 5243 (May 13, 2020) (D.C.
Act 23-317)
COVID-19 Response Emergency Amendment Act of
2020, D.C. Act 23-247, § 308 (Mar. 17, 2020)
III.B.3, the Court declines to exercise its discretion to allow a surreply and will deny Gallo’s motion.
Because the issuance of this opinion makes Gallo’s
motion to expedite unnecessary, the Court will deny it as moot.
78a
Appendix H: DC Superior Court Ruling
The ruling of the DC Superior Court was
printed and filed with this court. It is incorporated by
reference. See Supreme Court Docket No. 21-809,
Appendix, at 13a. See pages 44a-49a (“Application of
the filing moratorium to ejectment actions”):
3. Application of the filing moratorium to
ejectment actions
As the Court discusses in the preceding section,
a key factor affecting the degree of scrutiny of the
filing moratorium involves the extent to which it
restricts the right of access to courts. A cornerstone of
amici’s defense of the filing moratorium is that the
burden is minimal because the moratorium does not
affect the ability of property owners to file ejectment
actions in the Civil Actions Branch. According to the
amici, “the filing moratorium only addresses the filing
of summary claims for possession in the Landlord and
Tenant Branch of this Court under D.C. Code § 161501, and nothing prevents a landlord from a civil
action for ejectment that provides the same ultimate
remedy of possession of the unit.” Amicus Brief at 11.9
This argument does not have any support in the
language of the statute, and the moratorium on the
filing of eviction cases applies to cases in the Civil
Actions Branch seeking possession under the
ejectment statute, D.C. Code § 16-1101. Property
owners may not circumvent the filing moratorium by
artful pleading.
9 At the November 30 hearing, the District stated that it
does not have a position on this issue.
79a
Section 16-1501(a) covers any complaint filed
by a person “for the restitution of possession” against
a person who “detains possession of real property
without right, or after his right to possession has
ceased.” Subsection (b) provides, “During a period of
time for which the Mayor has declared a public health
emergency pursuant to § 7-2304.01, and for 60 days
thereafter, the person aggrieved shall not file a
complaint seeking relief pursuant to this section.”
Amici assert that if a property owner seeking
possession invokes only § 16-1101 and not § 16-1501,
the property owner is not – in the words of § 161501(b) – seeking relief “pursuant to this section,” so
the filing moratorium in § 16-1501(b) does not apply.
Amicus Brief at 11. However, whether or not a
property owner explicitly invokes § 16-1501, its
complaint is “for the restitution of possession” against
a person who “detains possession of real property
without right, or after his right to possession has
ceased,” and the property owner is in fact and in
substance seeking relief “pursuant to” § 16-1501.
Therefore, the filing moratorium in § 16-1501(b)
applies.
Amici’s interpretation would permit easy and
complete avoidance of the filing moratorium by
property owners, and this result would violate “one of
the most basic interpretive canons,” which is “that a
statute should be construed so that effect is given to
all its provisions, so that no part will be inoperative or
superfluous, void or insignificant.” See Stevens v. D.C.
Department of Health, 150 A.3d 307, 315-316, (D.C.
2016) (cleaned up). The Court agrees with one of the
plaintiffs that “[i]f Civil Actions is indeed an
immediately viable route for all landlords to take, as
80a
amici contend, the Superior Court could indeed
dispose of the entire constitutional challenge by
immediately certifying the entire docket of the
Landlord & Tenant branch to the civil actions
branch.” See Reply Brief of Plaintiff Gallo Holdings
LLC – Series 2, at 11 (filed Nov. 20, 2020).
In whichever branch they are filed, eviction
cases should be resolved expeditiously because the
Court has the same obligation to expedite eviction
cases in the Civil Actions Branch as those in the L&T
Branch. As amici correctly acknowledged in the
November 30 hearing, property owners seeking to
eject occupants pursuant to § 16-1101 are subject to
the same prohibition on self-evictions as property
owners seeking the same remedy of possession
pursuant to § 16-1501. See Mendes, 389 A.2d at 783.
As discussed in Section II.A.2 above, “the availability
of a summary procedure whereby a landlord could
quickly reacquire possession from a defaulting tenant
with the aid of judicial process” is the quid pro quo for
“the abrogation of the common law right of self-help
and the rejection of precedents holding that such right
had been preserved.” See Mahdi, 433 A.2d at 1088. In
addition, both Rule 1 of the Superior Court Rules of
Civil Procedure (“Civil Rules”) applicable in the Civil
Actions Branch and Rule 1 of the Superior Court
Rules of Procedure for the Landlord and Tenant
Branch (“L&T Rules”) require all rules to be
construed, administered, and employed to secure the
“speedy” determination of every action and
proceeding.10
10 At the November 30 hearing, amici contended that cases in
the Civil Actions Branch may take longer to resolve because they
81a
Further confirmation that the duty to expedite
eviction cases does not depend on whether the case is
in the L&T Branch or the Civil Actions Branch is the
Court’s duty under the L&T Rules to expedite cases
certified from the L&T Branch to the Civil Actions
Branch. L&T Rule 5(c)(2) requires an “expedited
trial” of any case certified to the Civil Actions Branch
because the defendant asserts a plea of title, and Rule
6(b) similarly requires an “expedited trial” in the Civil
Actions Branch if the defendant properly demands a
jury trial.11 These rules corroborate that the Court
has the same duty to expedite eviction cases in the
Civil Actions Branch as those in the L&T Branch.
Indeed, nothing in any statute or in the L&T
Rules prohibits a property owner from filing in the
L&T Branch a complaint seeking possession through
an ejectment action under § 16-1101.
The form complaint used in the Landlord and Tenant
Branch does not identify the statute under which the
case is brought. The Court also has the option to
create a calendar that includes both eviction cases
involve discovery. Parties in cases subject to the Civil Rules have
a right to discovery, and under L&T Rule 10(a), there is generally
no discovery in cases in the L&T Branch subject to the L&T
Rules. However, discovery need not significantly delay a case,
and when discovery occurs in eviction cases in the Civil Actions
Branch, it is usually limited. See also Civil Rule 26(b)(1)
(incorporating the proportionality principle); Civil Rules
26(b)(2)(a) and 26(c)(1) (authorizing limitations on discovery).
11 Amici’s argument involves eviction cases filed in the Civil
Actions Branch without a jury demand, and the Court likewise
focuses on cases without a jury demand. If the defendant makes
a jury demand (in the L&T Branch or the Civil Actions Branch),
the case will take substantially longer to resolve, and the Court
will not be able to resume conducting jury trials in any civil cases
until sometime in 2021.
82a
filed in the Civil Actions Branch and those filed in the
L&T Branch.12
At the November 30 hearing, amici could not
identify any persuasive reason why the Court could
not treat all the post-March 11 eviction cases filed in
the L&T Branch as cases seeking possession through
ejectment under § 16-1101. Amici did argue that
treating eviction cases filed in the Civil Actions
Branch as expeditiously as eviction cases filed in the
L&T Branch would violate the intent of the statute,
but they did not point to anything in the language or
legislative history of the filing moratorium to support
this argument. The statutory provision containing
the filing moratorium does not mention the L&T
Branch, much less provide that this moratorium
applies only to cases filed in the L&T Branch, nor does
this statutory provision explicitly address how quickly
or slowly the cases should be resolved. In a different
context, amici acknowledge that the “eviction filing
moratorium, an amendment to a provision of Title 16
of the D.C. Code, is not concerned with either the
organization or jurisdiction of this Court.” See Amicus
Brief at 17. The Court is not willing to read into any
emergency or temporary legislation an implicit
directive to slow-roll eviction cases filed in the Civil
Actions Branch.
Because interpreting the filing moratorium in §
16-1501(b) not to apply to ejectment actions would
effectively nullify the filing moratorium, this
12 For example, the debt collection calendar includes both cases
filed in the Civil Actions Branch because the alleged debt exceeds
$10,000 and cases filed in the Small Claims Branch because the
alleged debt is $10,000 or less.
83a
interpretation would mean that the filing moratorium
would achieve none of the purposes that amici and the
District ascribe to it. As the Court discusses in more
detail in Section II.B.2 below, the District and amici
argue that the mere pendency of an eviction case may
cause anxiety and depression and lead tenants to
move out and become homele
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