August 30, 2021


Jason A. Levine, Ryan Martin-Patterson, & Stephen Tagert


This week’s top COVID-19 litigation developments are: the U.S. Supreme Court’s decision rendering inoperative the CDC’s moratorium on residential evictions; decisions by several Texas courts against Governor Abbott’s attempt to ban mask mandates; the Ninth Circuit’s decision upholding Los Angeles’ local residential eviction moratorium; Apple’s motion to dismiss a suit over its refusal to sell certain COVID-19-related apps on the “App Store”; and a lawsuit by Ohio hospital workers seeking to invalidate their employers’ vaccine mandates.

1. U.S. Supreme Court Lifts Stay of Order Invalidating CDC’s Eviction Moratorium

Overview: The Supreme Court held that the Centers for Diseases Control and Prevention very likely lacks authority to impose a nationwide moratorium on evictions of tenants who live in counties experiencing substantial or high levels of COVID-19 transmission, and the Court therefore lifted the stay on a lower court order that invalidated and vacated the moratorium.

Opinion: As we previously covered, in May, the U.S. District Court for the District of Columbia held that the CDC did not have the statutory authority to impose a nationwide eviction moratorium. But the court stayed its judgment pending appeal. The U.S. Court of Appeals for the D.C. Circuit affirmed the stay, and although five Justices of the U.S. Supreme Court agreed that CDC likely lacked statutory authority for the moratorium, Justice Kavanaugh voted against vacating the stay in light of the then pending expiration of the moratorium in a matter of weeks.

After the CDC decided to reimpose the moratorium, however, the Supreme Court lifted the stay, thus rendering the eviction moratorium inoperative. The Court explained in aper curiam opinion that the plaintiff, a realtor association, was “virtually certain to succeed on the merits,” noting that it “strains credulity to believe” that a “decades-old statute that authorizes [CDC] to implement measures like fumigation and pest extermination . . . grants the CDC the sweeping authority that it asserts.”

Justice Breyer, joined by Justices Sotomayor and Kagan, dissented, stating that they did not believe that the lower court had clearly and demonstrably erred in issuing the stay and that the Court should not set aside the moratorium in a summary proceeding.

Our Take:Absent federal legislation, this decision should effectively end the protracted litigation over the CDC’s authority to issue the eviction moratorium. We would expect pressure on Congress to enact pertinent legislation, but Congress may not feel the need to do so when it has already appropriated $47 billion toward rental relief, the vast majority of which has not yet been disbursed. We will pay close attention for any further developments.

2. Texas Litigation Continues Over Ban on Mask Mandates

Overview:On August 19, 2021, the Supreme Court of Texas denied Texas Governor Greg Abbott’s request to stay a ruling that prevented him from enforcing his ban on mask mandates in a suburban Houston-area county. On August 25, a Dallas County judge granted a temporary injunction preventing Governor Abbott from enforcing the same ban in Dallas County.

The Rulings: We previously covered Executive Orders GA-36 and GA-38, which generally banned government entities in the State of Texas from requiring that any person wear a mask. After three Travis County District Judges entered temporary restraining orders preventing enforcement of the Executive Orders, the Texas Supreme Court denied Governor Abbott’s emergency motion for a stay. As a result, local government entities in Travis County, which includes most of Austin, can enact mask mandates. Since that loss, another judge granted a request for a temporary injunction halting enforcement of the Governor’s ban on mask mandates in Dallas County.

Our Take:While the Texas Supreme Court has not yet ruled on the merits, and could ultimately side with Governor Abbott, his string of judicial defeats has made enforcing his Executive Orders more difficult. Other local government entities in other States with similar bans on mask requirements and vaccine passports may feel emboldened to challenge those bans as well.

3. Ninth Circuit Affirms Denial of Preliminary Relief Against Los Angeles’s Residential Eviction Moratorium

Overview:The U.S. Court of Appeals for the Ninth Circuit affirmed the U.S. District Court for the Central District of California’s order denying a request for preliminary injunctive relief against the City of Los Angeles’s eviction moratorium.

Opinion:The plaintiff, a trade association for Los Angeles landlords, sought to enjoin key provisions of the Los Angeles eviction moratorium, arguing that it violated the Contracts Clause of the U.S. Constitution. The moratorium prevents landlords from evicting tenants in certain circumstances from March 4, 2020, to “the end of the local emergency as declared by the Mayor.” The moratorium does not require tenants to provide evidence, such as a written attestation, that any claimed inability to pay rent was due to COVID-19. The moratorium also defers payments for up to 12 months after the emergency has ended but does not eliminate any obligation to pay.

The Ninth Circuit affirmed the denial of a preliminary injunction against this moratorium. The panel explained that, under modern Contracts Clause doctrine, the district court did not err in determining that, even if the moratorium substantially impaired contracts, its provisions were likely “reasonable” and “appropriate” given the circumstances of the COVID-19 pandemic. It noted that the association could still attempt to pursue other statutory or constitutional challenges to the moratorium.

Our Take: Although the Contracts Clause claim has not borne fruit here, it will be interesting to see if the association revisits its legal strategy and pursues emergency relief under other statutory or constitutional theories. That the U.S. Supreme Court has recently prevented both New York and the CDC from enforcing their moratoria on other statutory and constitutional grounds may provide the association with an incentive to do so.

4. Apple Moves to Dismiss Suit Over its Decision Not to Host Certain COVID-19-Related Apps

Overview: Apple moved to dismiss a complaint filed by two app developers that made COVID-19-related apps and allegedly were denied access to Apple’s “App Store.”

The Motion: Two app developers, Coronavirus Reports and CALID Inc., sued Apple, asserting claims for antitrust violations, breach of contract, and racketeering, among others, based on the refusal to approve and distribute their COVID-related apps. Apple responded that it has had to “evaluate COVID-19-related apps with a critical eye to ensure consumers are receiving safe, credible information supported by established medical and scientific institutions” to protect them from misinformation. Apple argues that it has no obligation to distribute apps that “are inconsistent with its Guidelines or policies or that threaten its consumers’ health or safety.” But its motion largely focuses on other objections to the complaint, including plaintiffs’ failure to plausibly define the relevant market and to allege exclusionary conduct as opposed to a mere refusal to deal.

Our Take: Throughout the pandemic, technology companies have been both praised and criticized for actions taken to allow the free flow of productive information while protecting consumers from misinformation. This lawsuit brings the antitrust laws into that discussion, and we will follow the case to see if the court allows any of those claims to move forward.

5. Ohio Hospitals Sued by Employees Over Vaccination Mandate

Overview: On August 23, 2021, employees of a Cincinnati hospital and physician group sued to overturn their mandatory vaccination policies.

The Complaint: According to the complaint, on August 5, 2021, the defendants announced that all employees must be fully vaccinated in order to remain employed. Roughly 40% of their employees were not vaccinated on the day the mandate was announced. The complaint includes numerous statistics regarding the efficacy of the vaccines, the possibility of breakthrough infections, the likelihood of severe infection when vaccinated, the possibility of herd immunity, and the current spread of COVID-19. Plaintiffs assert a cornucopia of claims: that the mandate violates their right to refuse unwanted medical care; constitutes criminal coercion, constructive fraud, and tortious interference with personal healthcare; intentionally inflicts emotional distress; violates employees’ due process rights; and violates federal antitrust laws, among other causes of action.

Our Take: While this complaint is a bit unorthodox in its breadth and approach, it is emblematic of suits across the nation by employees who are resistant to vaccination for COVID-19. It remains to be seen whether and how the FDA’s recent formal approval of the Pfizer vaccine affects such suits.

Jason Levine is a commercial and antitrust litigation partner in the Washington, D.C. office of Alston & Bird LLP. Ryan Martin-Patterson and J. Stephen Tagert are litigation associates at the firm.