A short one from the U.S. Court of Appeals for the Ninth Circuit.
In Jevon v. Inslee, No. 22-35050 (Aug. 8, 2023), the panel summarily concluded that a takings challenge to the Washington governor's eviction moratorium -- imposed in response to the Co-19 emergency -- is moot.
The plaintiffs limited the relief sought to a declaratory judgment (understandable, because as a federal court lawsuit, they likely wanted to avoid the usual Eleventh Amendment fight if suing a state in federal court for retrospective monetary relief), and the court thus concluded that a declaratory judgment today, now that the moratorium has expired, would not do much of anything:
[A] declaratory judgment merely adjudicating past violations of federal law -- as opposed to continuing or future violations of federal law -- is not an appropriate exercise of federal jurisdiction." Thus, this case is moot because the challenged activity -- the eviction moratorium -- has expired and no longer has a "continuing and brooding presence" that would have a "substantial adverse effect" on Plaintiffs.
Slip op. at 3.
Well, not exactly. The effects of the moratorium do indeed have a continuing and brooding presence for the property owners who were prevented from trying to collect the owed rent -- or recover possession of their properties -- during the effectiveness of the moratorium. And they're gonna be feeling a whole lot of substantial adverse effects today and probably forever (good luck collecting any of the back rent).
It's just that the remedy sought -- declaratory relief -- would not do much to address those substantial adverse effects. At least not the way the panel sees it. The property owners argued that "they seek to use a declaratory judgment that a constitutional violation occurred to later secure just compensation or damages in state court." Slip op. at 4-5. But that argument flies too close to the Eleventh Amendment sun for the Ninth Circuit, which concluded that "[t]he issuance of a declaratory judgment for such a purpose is barred by the Eleventh Amendment." Id.
Besides, we already know what would happen to such a claim in a Washington court: nothing.
Jevons v. Inslee, No. 22-35050 (9th Cir. Aug. 8, 2023) (Memo.)
