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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