By Khorri Atkinson

Law360 (May 19, 2021, 7:14 PM EDT ) The Biden administration fired back at a group of landlords looking to block the nationwide eviction ban, telling a D.C. federal judge Wednesday that the government's new guidance on mask-wearing doesn't warrant vacating a recent order pausing the property owners' earlier win.

Attorneys for the U.S. Centers for Disease Control and Prevention and the U.S. Department of Health and Human Services made this argument in a five-page brief rebutting the landlords' assertion that they failed to inform U.S. District Judge Dabney L. Friedrich about the "dramatically improved" public health crisis before she granted their request for a stay, pending the appeal of her May 5 order that gutted the eviction ban.

The realtors and property owners urged Judge Friedrich in a letter on Monday to, at a minimum, issue an order directing the government to show cause for why the district court should not vacate the May 14 pause in light of its "shifting narratives about public health and their failure to timely inform this court that conditions have so radically improved that even basic COVID-19 precautions are no longer necessary."

In their response filing, the agencies said the plaintiffs' request is "baseless" because the May 13 guidance "does not change the basic facts underlying the CDC [eviction ban] order: COVID-19 spreads quickly and easily among unvaccinated individuals, and evictions exacerbate its spread."

The guidance says people fully vaccinated against the virus don't have to wear masks or physically distance indoors or outdoors, as long as no laws, regulations or workplace rules require otherwise. The agencies emphasized that the guidance applies only to the 37.5% of Americans who are fully vaccinated as of Wednesday.

"While it is true that the national COVID-19 picture is improving, the country is still averaging around 30,000 new infections per day," the brief added. Moreover, a majority of counties in the U.S. are still experiencing substantial or high transmission rates, with less than 10% experiencing low transmission rates, it said.

"CDC's general advice for fully vaccinated individuals thus provides no basis to second guess the judgment of public health experts that the eviction moratorium remains necessary to protect the significant majority of Americans who are not yet fully vaccinated from the specific risks associated with residential evictions," the filing said. "Lifting other mitigation measures like eviction moratoria could lead to spread during a time when large portions of the population are not yet protected."

The agencies also denied the landlords' claim that they failed to timely inform the court about the improved public health crisis. The CDC and HHS contended that public health statistics regarding COVID-19 — such as vaccinations, infections and deaths — are public information and that the government has routinely provided up-to-date statistics in filings.

"Plaintiffs themselves relied upon similar statistics in their opposition to defendants' stay motion," the agencies added. "As for the May 13 guidance, it was not issued until two days after defendants filed their reply brief, it received immediate and enormous media attention, and in any event it does not undermine defendants' position in this case. Of course, plaintiffs were free to bring it to the court's attention before it ruled if they thought otherwise."

An attorney for the plaintiffs did not immediately reply Wednesday to a request for comment.

The government's rebuttal came days after the landlords urged the D.C. Circuit to vacate Judge Friedrich's order pausing their earlier win. They invoked the CDC's guidance in arguing that the judge was wrong to stay her ruling while the Biden administration appealed.

In her initial ruling, Judge Friedrich said Congress did not express a clear intent to grant the CDC such sweeping authority under the Public Health Service Act to ban evictions nationwide. The ban, first put in place by the Trump administration, was recently extended until June 30.

The CDC's order was originally slated to expire in December, but Congress granted a temporary extension of the eviction moratorium through the end of January. The agency, which is part of the HHS, later moved to extend the eviction moratorium through June, but without congressional approval.

The realtors and property owners are represented by Brett A. Shumate, Charlotte H. Taylor, Megan Lacy Owen and Stephen J. Kenny of Jones Day.

CDC and HHS are represented by Steven A. Myers and Leslie Cooper Vigen of the U.S. Department of Justice's Civil Division.

The case is Alabama Association of Realtors et al. v. U.S. Department of Health and Human Services et al., case number 1:20-cv-03377, in the U.S. District Court for the District of Columbia.

--Editing by Regan Estes.

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